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THE AMERICAN PHILOSOPHY 
OF GOVERNMENT 

ESSAYS 



BY 



ALPHEUS HENRY SNOW 

II 
AUTHOR OF "THE ADMINISTRATION OF DEPENDENCIES/' "CON- 
SIDERATIONS IN THE INTEREST OF THE PEOPLE OF THE 
PHILIPPINE ISLANDS/' "THE QUESTION OF ABORIGINES 
IN THE LAW AND PRACTICE OF NATIONS." 



G. P. PUTNAM'S SONS 

NEW YORK AND LONDON 

Ube fmicfeerbocfcer press 
1921 



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V 



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Copyright, 1921 

by 

G. P. Putnam's Sons 

Printed in the United States of America 



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OCT 2! I92f 




SCI.A627353 






CONTENTS 

PAGE 

The American Philosophy of Goverment and its Effect on 

International Relations ...... 3 

The Declaration of Independence as the Fundamental 

Constitution of the United States . . . -35 



The Development of the American Doctrine of Jurisdiction 
of Courts over States ...... 

Execution of Judgments against States 

A League of Nations According to the American Idea 

The Position of the Judiciary ..... 

International Legislation and Administration . 

Legal Limitation of Arbitral Tribunals 

Cooperation vs. Compulsion in the Organization of the 
Society of Nations ...... 

Cooperative Union of Nations ..... 

New National Processes and Organs .... 

The Mandatary System 

Shantung and Spheres of Influence .... 

The Disposition of the German Colonies . 

Judicative Conciliation 

The Proposed Codification of International Law 

The Law of Nations . . . 



67 
113 
155 
173 
207 
231 

267 
283 
299 
319 
337 
357 
373 
395 
419 



International Law and Political Science . . . -437 

Participation of the Alien in the Political Life of the 
Community ......... 459 



ESSAYS 



THE AMERICAN PHILOSOPHY OF 
GOVERNMENT 



THE AMERICAN 

PHILOSOPHY OF GOVERNMENT 

AND ITS EFFECT ON INTERNATIONAL 

RELATIONS 

Reprinted from "The American Journal of International Law," 
April, 19 14 

UNTIL quite recent times, it would have been un- 
profitable, in the case of most nations, to in- 
quire what the philosophy of government held 
by the people was, or what effect it had on the foreign 
relations of the nation, or on international relations gen- 
erally. There were few nations in which the people were 
so enlightened and expressed themselves so fully that it 
was possible to distinguish and define the particular 
philosophy of government held by them ; and even if it 
had been possible to do so, it would have been of little 
use to try to discover what effect this philosophy had 
on international relations, since the fact was that it 
had little or no effect. The people of each nation, ig- 
norant of foreign affairs by reason of the difficulties of 
travel and communication, allowed the executive to 
control the foreign relations under the advice of a coun- 
cil in the selection of which they had no voice, and 
representing privileged classes of persons who used the 
power of the nation as means to accomplish such ends 
as they thought desirable. 

So long as this condition of things was general, the 
rights of nations occupied the attention of writers. The 

5 



6 The American Philosophy of Government 

rights of man, the rights of peoples, and the rights of 
society in general were ignored, as were the responsi- 
bilities which necessarily accompany all rights. Each 
nation sought to aggrandize itself by conquering and 
pillaging others, and the only restraint on one nation 
trespassing upon another was that all the so-called civi- 
lized nations were gradually forced, by the pressure of 
circumstances, to enter into the playing of a military 
game of forcible checks and balances, called "the bal- 
ance of power" or "the political equilibrium." 

The principle of this game was very simple, though, 
like most other games, the rules for playing it were 
very intricate. When any nation, for the purpose of 
direct gain by pillage of its neighbors or by despoilment 
of the natives of barbarous regions, or for the purpose 
of indirect gain by destroying its competitors in trade 
or opening up new trading points, desired to conquer 
adjacent or distant regions — thereby increasing its mili- 
tary and naval strength and paving the way for 
further expansion — the surrounding nations combined 
their military and naval strength by alliances until the 
proposed expansion was balanced and checked, or until 
the opposing nations, or all the nations concerned, were 
"compensated" by partitioning between them some 
weak country which had been crushed in the course of 
the war. Thus what was called the status quo or the 
"political equilibrium" was maintained. 

So long as the people of each nation remained unen- 
lightened and were without full power to express their 
ideas through representative institutions, the war-game 
of "the balance of power" ruled international politics, 
and international disputes were disputes concerning the 
"rights of nations," and particularly on points of "na- 
tional honor." The citizens of each nation had only 
partial and indefinite rights at home, and citizens of 



The American Philosophy of Government 7 

one nation had no rights in another nation or against a 
foreign government. A person abroad had only certain 
privileges, and these usually were based on treaty. 
Breaches of treaty were considered to involve the na- 
tional honor not of the nation breaking the treaty, but 
of the other nation, and led to war or to a new disposi- 
tion of alliances according to the rules of the war-game. 
As the people became more enlightened, and obtained 
an increasing participation in their own government by 
representation and by compelling their governments to 
be responsible to them, there gradually arose in each 
nation a popular philosophy of government, in which 
the rights of individuals, of peoples, and of human soci- 
ety in general, were distinguished from the rights of 
nations. The houses of representative legislatures, and 
particularly the houses directly representing the people 
of the nation, as their members became increasingly 
better informed concerning foreign affairs through in- 
creased facilities for travel and intercourse, insisted 
with greater and greater force that the philosophy held 
by the people should have its effect upon foreign rela- 
tions as well as upon domestic affairs... The war-game 
of the balance of power everywhere came under criti- 
cism. At the present time its principles are beginning 
to be known, and there is a growing understanding of 
its intricate rules. The classes and interests which have 
heretofore had the monopoly of this knowledge, and 
which in all sorts of secret ways were able to use the 
nation and determine its moves, are being haled into 
the daylight and exposed to the destructive power of 
publicity. -Indeed the danger at the present time is. 
that in the control by the people of each nation over 
national and international affairs, the just rights of na- 
tions to live and protect themselves, and to be the 
guardians of the rights of individuals, of peoples and 



8 The American Philosophy of Government 

of society at large, will be ignored, and that the whole 
structure of organized society will be weakened, to the 
detriment of individual liberty. 

It becomes, therefore, important to consider the 
philosophy of government held by the people of each 
nation, and particularly of those which have advanced 
farthest along the path of popular government, for the 
purpose of ascertaining how this philosophy is likely 
to affect international relations. It is particularly de- 
sirable to consider the philosophy held by the people of 
the United States, and extended to its annexed coun- 
tries, since this is one of the two great philosophies of 
popular government now prevailing in the world; the 
other being that held by the people of Great Britain, 
which has extended more or less completely to the self- 
governing states of the British Empire, and to the na- 
tions of the Continent of Europe. 

Every philosophy of popular government tends to the 
establishment and enlargement of the rights of the 
individual. When we speak of "popular rights," we 
mean the rights of the individual. It is true we may 
speak of the rights of one people against another, or the 
rights of society against peoples, but these are figurative 
expressions. They all come down, in the last analysis, 
to the rights of the individual. The important thing, 
therefore, in examining a philosophy of government held 
by the people of a nation is, to reach a definite idea 
concerning what the rights of the individual are under 
this philosophy, into what classes and grades they are 
divided, how they are considered to arise, whether they 
are considered to be against the government or against 
all governments as well as against other individuals, 
and how it is considered they ought to be safeguarded. 

The crux of the whole matter is, however, whether 
the individual, according to the philosophy of govern- 



The American Philosophy of Government 9 

ment held by the people of the nation has rights against 
the government, and, if so, why and to what extent? 
It is particularly important to inquire whether they 
base the rights of the individual against the government 
on grounds which logically require them to hold that 
all individuals have rights against all governments. If 
the people of a nation do hold that there are rights of 
individuals against governments, and particularly if 
they hold this idea for reasons which, logically followed 
out, require them to hold that all individuals have 
rights against all governments, this philosophy is bound 
to have an effect upon international relations. 

There can be no doubt but that the proposition that 
there are certain rights of the individual against the 
government does form the most fundamental part of 
the American philosophy of government. We are ac- 
customed to see every branch of our government care- 
fully scrutinizing every governmental action lest it may 
be found to infringe certain rights of the individual. 
Every governmental agency, from the Congress and 
the President downwards throughout the United States, 
and from the Legislature and Governor downwards 
throughout the States, is bound by certain express con- 
stitutional prohibitions which are designed for the 
protection of these rights, and if these constitutional 
prohibitions are infringed by governmental action, the 
action is nullified by the Supreme Court of the United 
States or by the court of final jurisdiction in the State. 
Thus the conception that there are certain rights of the 
individual against governments, which no government 
can infringe except upon penalty of having its act nulli- 
fied, is a very living one among the people of the United 
States. 

If the people of the United States held that these 
rights were merely rights which they thought it expe- 



10 The American Philosophy of Government 

dient for their citizens to have, their citizens would have 
these rights merely as citizens. Such a doctrine would 
make little difference to the rest of the world. Any 
rights which we think it merely expedient that our 
citizens should have at home are of course of little effect 
abroad. But we do not base our belief in these rights 
of the individual against the government upon any 
grounds of national expediency. We assert that every 
citizen of the United States has certain rights against 
all other persons and against all governments, because 
these rights arise out of the necessities of human nature 
and because it is essential to human society that every 
individual should have these rights. We say that these 
are " fundamental rights" and are not only universal 
but are " unalienable" — that is, that persons cannot 
convey them to governments and thereby give govern- 
ments absolute power over them. This makes our philo- 
sophy international, as well as national. Our people 
and all who dwell in our midst or under our juris- 
diction, have fundamental rights against our govern- 
ments not merely as citizens of the United States, or as 
under its protection or jurisdiction, but as human beings 
living in the society of other human beings. These 
fundamental rights, according to our philosophy, must 
therefore arise under a law growing out of the necessi- 
ties of human nature, which is supreme over the United 
States and over all individuals, peoples, and nations, 
and which arises from the act of a legislator external to 
the United States. 

What then, are these fundamental rights which thus 
arise under a law made by the legislative act of a power 
external to and supreme over the United States, and 
what is this external and supreme law under which we 
consider these rights to exist? 

The Declaration of Independence contains the only af - 



The American Philosophy of Government 1 1 

firmative statement concerning these fundamental rights 
and this external and supreme law. In the preamble, it 
is said : "We hold these truths to be self-evident : That 
all men are created equal ; that they are endowed by their 
Creator with certain unalienable rights, that among 
these are life, liberty, and the pursuit of happiness ; that 
to secure these rights, governments are instituted among 
men, deriving their just powers from the consent of the 
governed." Thus the Declaration divides all rights of 
individuals into two classes. In the first class are cer- 
tain unalienable rights with which each man is endowed 
by his Creator, and among which are the rights of life, 
liberty, and the pursuit of happiness; in the second 
class are all other rights. This first class the Supreme 
Court of the United States calls "fundamental rights"; 
the second class it calls "artificial or remedial rights," 
since the rights of the second class must be consist- 
ent with and in aid of those of the first class. The 
fundamental rights are "recognized, but not created, by 
the Constitution;" that is to say, by the people of the 
United States, through the Constitution. (Logan v. 
United States, 144 U. S., 263, 293.) 

The artificial or remedial rights are created by the 
people or the government of the United States, or by 
the peoples or the governments of the States. The Su- 
preme Court says of these rights that they are "peculiar 
to our own system of jurisprudence:" thus distinguish- 
ing them from fundamental rights, which are of course, 
in our view, common to every system of jurisprudence, 
including the international system. (Downes v. Bid- 
well, 182 U. S., 244, 282.) 

The definition of the fundamental rights of the indi- 
vidual as including his rights of "life, liberty, and the 
pursuit of happiness," given in the Declaration, is too 
indefinite for practical use. When, however, we go 



12 The American Philosophy of Government 

back to the literature of the Revolutionary period and 
use it as a contemporary exposition of the meaning of 
these words, the definition becomes clear and practical. 
The fundamental or common rights are those corre- 
sponding to the common attributes which all men have 
as a necessary part of their human nature and as essen- 
tial to the existence of human society. These attributes 
are life, the power to move and the power to use lands, 
things, and forces 1 in the pursuit of happiness. Inas- 
much as these common attributes with which all are 
equally endowed by and at their creation give rise to 
common necessities, it follows, as we believe, that there 
must be a supreme and fundamental law of human 
society recognizing these common attributes and these 
common necessities and conferring rights upon each in- 
dividual to satisfy his necessities. The fundamental 
rights of the individual may thus be stated to be the 
right to so live, to so move, and to use such part of the 
land, things, and physical forces of the universe for his 
support and happiness, as is consistent with the common 
and equal right of every other individual to such life, 
to such motion, and to the use of lands, things, and 
forces for the same purpose. Though these fundamen- 
tal rights cannot be alienated by any individual to any 
person or government, the individual may of course 
forfeit them to society for anti-human and anti-social 
acts done by him, and it is the function of governments, 
subject to the ultimate superintendence of the people 
of each nation, to adjudicate the total or partial for- 
feiture of these rights by due process of law and to 
enforce forfeitures so adjudicated. The right of an 
individual to use exclusively lands, things, or forces, 
which we call property, is evidently to some extent a 
fundamental right and to some extent an artificial right. 
Thus the Declaration does not regard property as a 



The American Philosophy of Government 13 

fundamental right. On account, however, of the diffi- 
culty of determining the extent of property which the 
individual may own as a matter of fundamental right, 
we protect all the property which an individual owns, 
equally with his life and liberty, so as to prevent it 
from being taken from him "without due process of 
law," — thus requiring proper legislative action, proper 
judicial determination and proper executive action as a 
precedent to the forfeiture. 

The nations which recognize the fundamental rights 
of the individual have various expedients for safeguard- 
ing them. These rights may evidently be infringed by 
individuals or by governments. The courts in every 
civilized country are the especial guardians of funda- 
mental rights in so far as the customary law is con- 
cerned. Courts everywhere refuse to apply customs as 
rules of law when the customs are contrary to funda- 
mental rights. But when the legislature has enacted a 
law, the courts of most nations are powerless to consider 
whether it infringes the fundamental rights of the indi- 
vidual. Thus, in most nations, the individual has no 
rights against the government, or at least against the 
legislative branch. Experience has shown, however, 
that each individual has quite as much to fear from the 
action of governments — even from the popular legis- 
latures — in infringing his fundamental rights as from 
other individuals. A government, or the legislative 
part of it, is, after all, only a group of individuals, and 
it may, like any other group of individuals, violate the 
fundamental rights of individuals. Even if the govern- 
ment is directly responsible to the will of the majority 
of the electors, the majority may compel the govern- 
ment to violate the fundamental rights of the individual 
unless some way is found for nullifying such govern- 
mental acts even though commanded by the majority. 



I 



V 



14 The American Philosophy of Government 

The British system of responsible government recog- 
nizes the fundamental rights of the individual, but gives 
no protection to the individual against infringement of 
his rights by the government except by concentrating 
responsibility in a small committee called the Cabinet, 
and making the tenure of office of the Cabinet depend 
upon its having a majority in the popular House. The 
theory is that if the Cabinet attempts to induce any 
branch of the government to infringe the fundamental 
rights of the individual, or sanction such an infringe- 
ment, it will lose its majority and go out of power, to 
be supplanted by a Cabinet which will see that these 
rights are protected. 

The people of the United States have adopted a differ- 
ent method of protecting these fundamental rights. In 
the Constitution of the United States, and in the State 
Constitutions, are inserted prohibitions upon certain 
forms of governmental action found by experience to be 
likely to occur if not prohibited, and which endanger 
or destroy the fundamental rights of the individual. 
These prohibitions are the most fundamental parts of 
the Constitution, and no governmental powers can be 
exercised contrary to them. That is to say, they are 
supreme over all the rest of the Constitution and over 
all governmental action which the particular Constitu- 
tion affects. The Supreme Court of the United States 
has said — to repeat what has been above quoted with 
its immediate context — that there are ' 'certain funda- 
mental rights, recognized and declared, but not granted 
or created by the Constitution, and thereby guaranteed 
against violation or infringement by the United States, 
or by the States, as the case may be." The following 
is a collation of the provisions of the Constitution of 
the United States, prohibiting certain kinds of govern- 
mental action by the Government of the United States 



The American Philosophy of Government 15 

for the protection of fundamental rights, which has 
received the approval of the Supreme Court. (Logan 
v. United States, 144 U. S. 263, 293.) 

(This collation was made in the Instructions of the Presi- 
dent to the Commission for taking over the Civil Govern- 
ment of the Philippines from the Military Authorities, 
dated April 7, 1900, and is quoted in Kepner v. United 
States, 196 U. S. 100, 123. In those instructions it was 
declared that ' 'there are certain great principles of govern- 
ment which have been made the basis of our governmental 
system, which we deem essential to the rule of law and the 
maintenance of individual freedom," and that "there are 
certain practical rules of government which we have found 
to be essential to the preservation of these great principles 
of liberty and law." The above quoted constitutional pro- 
hibitions were spoken of as the "rules of government" 
which are "inviolable." See further on this subject an 
article on "The American Philosophy of Government and 
its Application to the Annexed Countries," by the author 
of this article, in the Proceedings of the American Political 
Science Association for 191 3, Vol. 10, p. 76.) 

" That no person shall be deprived of life, liberty, or prop- 
erty, without due process of law ; that private propertv shall 
not be taken for public use without just compensation; that 
in all criminal prosecutions the accused shall enjoy the 
right to a speedy and public trial, to be informed of the 
nature and cause of the accusation, to be confronted with 
the witnesses against him, to have compulsory process for 
obtaining witnesses in his favor, and to have the assistance 
of counsel for his defense; that excessive bail shall not be 
required, nor excessive fines imposed, nor cruel or unusual 
punishment inflicted; that no person shall be put twice in 
jeopardy for the same offense, or be compelled in any crimi- 
nal case to be a witness against himself; that the right to be 
secure against unreasonable searches and seizures shall not 
be violated; that neither slavery nor involuntary servitude 



1 6 The American Philosophy of Government 

shall exist except as a punishment for crime; that no bill of 
attainder or ex post facto law shall be passed; that no law 
shall be passed abridging the freedom of speech or of the 
press or the rights of the people to peaceably assemble 
and petition the government for a redress of grievances; 
that no law shall be made respecting an establishment of 
religion or prohibiting the free exercise thereof, and that 
the free exercise and enjoyment of religious profession and 
worship without discrimination or preference shall forever 
be allowed." 

The Supreme Court has said of this collation of Con- 
stitutional prohibitions : 

These words are not strange to the American lawyer or 
to the student of Constitutional history. They are the 
familiar language of the Bill of Rights, slightly changed in 
form, as found in the nine amendments to the Constitution 
of the United States, with the omission of the provision 
preserving the right of trial by jury and the right of the 
people to bear arms, and adding the prohibition of the 
thirteenth amendment against slavery or involuntary servi- 
tude except as a punishment for crime, and that of Art. I, 
§9, to the passage of bills of attainder and ex post facto laws. 
These principles . . . were carefully collated from our 
own Constitution, and embody almost verbatim the safe- 
guards of that instrument for the protection of life and 
liberty. (Kepner v. United Stares, 195 U. S. 100, 122, 123.) 

The Supreme Court has itself definitively attached 
to the rights secured by these Constitutional prohibi- 
tions the name of "fundamental rights." (Hawaii?;. 
Mankichi, 190 U. S. 197, 217; Kepner v. United States, 
195 U. S. 100, 123; Dorr v. United States, 195 U. S. 
138, 144, 148.) 

Substantially these same Constitutional prohibitions 
against governmental action are inserted in the Con- 



The American Philosophy of Government 17 

stitutions of the various States of the Union. Through 
the interpretation and application of these prohibitions 
of the Constitutional Bill of Rights, made by the 
Supreme Court of the United States as respects govern- 
mental action of the United States, and by the courts 
of final jurisdiction in the States as respects govern- 
mental action of the States, the principles of this su- 
preme universal law under which the fundamental 
rights of the individual exist, are being gradually 
evolved by a process of exclusion and inclusion. Of 
course the courts cannot be allowed to have absolute 
finality in making decisions of such great importance, 
which involve the interpretation and application of a 
law which is supreme over the people of every nation 
and over every nation, and the nullification of acts of 
popular legislatures. Where decisions made by courts 
are believed by the people of the nation to have been 
based on a wrong interpretation or application of these 
fundamental constitutional prohibitions — that is, on a 
wrong interpretation and application of this supreme 
universal law — the people of each State or of the nation 
may and doubtless ought to arrange for some appro- 
priate process of revision, but every revisionary process 
must be so arranged and safeguarded that it will be 
most likely to result in the fundamental rights of the 
individual being secured to him. The practice of in- 
trusting the courts of final jurisdiction with this great 
function is on the whole satisfactory to the people of 
the United States, since if the courts err they may also 
correct themselves in later decisions ; and the theoretical 
right of the people to provide a revisionary tribunal or 
process or to exercise direct revisionary power, is not 
likely often to be insisted upon. There is great danger 
to the fundamental rights of the individual in revision- 
ary action by direct popular vote, or even by a special 



1 8 The American Philosophy of Government 

tribunal or a special form of legislative action. The 
people of the United States are fully alive to these 
dangers, and there seems to be every probability that 
our system will never be essentially changed, and that 
such changes as are made will be for the purpose of 
rendering it more perfect. 

It follows from the American philosophy of govern- 
ment that we regard all our organized communities — 
even the United States and the States — as corporations. 
The citizens of the State or of the nation are the mem- 
bers of the corporation, and the government is a gov- 
erning agency or governing board. The object of all 
government, as we view it, is to secure the fundamental 
rights of the individual, and the powers of governments 
are limited to this purpose. Every organized com- 
munity is, by virtue of the fact that it is a corporation, 
democratic and representative. Corporations may of 
course form themselves into a corporation and fre- 
quently do so when the operations are widely extended 
— the greater corporation so created being given super- 
intending power for the general purposes. We apply 
this same idea, and our States as corporations have 
formed themselves into a federal corporation or federal 
nation. Thus the American philosophy of government 
necessarily results in democratic, representative, and 
federal institutions. 

The fact that some of the peoples of the world are 
beginning to hold a philosophy of government which 
distinguishes between fundamental rights and artificial 
rights, has already had a profound effect upon inter- 
national relations and is likely to have still greater 
effects; for out of the acceptance of the belief in 
fundamental rights grows the belief in the rights of 
individuals against governments, and of the propriety 
and necessity of constitutional prohibitions imposed by 



The American Philosophy of Government 19 

peoples or by society at large upon governments, for 
the protection of these rights. The individual thus be- 
comes a subject of the public international law, as well 
as the nations. The old theory that international law, 
or the law of nations, was concerned solely with the 
rights of nations is already modified. We look at the 
real parties in interest, and discover that in an increas- 
ing number of cases an individual or a group or class of 
individuals is the real party on one side and a nation 
as a corporation the real party on the other. Individu- 
als who are sojourning in a foreign nation often come 
into direct conflict with the government of the nation; 
and individual citizens of one nation frequently make 
contracts with a foreign nation. Thus the question 
arises in various ways, what rights have citizens of one 
nation against another nation? 

Some European writers on public international law 
have already noticed the change which is taking place 
in the views held concerning the subjects of interna- 
tional law growing out of the increasing belief in the 
fundamental rights of the individual — the rights of 
man, as the French call them. Thus in the Manual de 
Droit International Public, by Bonfils, revised by Fau- 
chille, it is said : 



The nations, considered as members of the international 
community, are par excellence international persons. . . . 
But are they the only international persons? Yes, if one 
uses the expression "international persons" as synonymous 
with and equivalent to "members of the international com- 
munity." But if, giving another meaning to this expression, 
one designates by the term "international persons" all the 
beings whose juridical situation is regulated by the public 
international law, whose rights and duties are determined 
and whose privileges are restricted by this law, as subjects 



20 The American Philosophy of Government 

of this branch of the law, the nations are not the only 
international persons. (6th Ed. 1912, Pars. 154, 157.) 

Speaking of the individual man as one of the subjects 
of the public international law, these authors say : 

Man, as a member of humanity, has an individuality of 
his own, says Pasquale Fiore, a sphere of action which may 
include all the regions of the globe, a juridical capacity 
belonging to him by reason of his mere existence and inde- 
pendent of that which may be recognized as pertaining to 
him as a citizen of a nation. . . . Heffter classes among 
the immediate subjects of international law man considered 
by himself, and the citizens of a nation in their relations 
with other nations. He develops his thesis by examining 
the primordial rights of man, of which the idea of personal 
liberty is the foundation, and which are not to be con- 
founded with political or civil rights. . . . 

Undoubtedly the individual man is not an international 
person of the same kind as the nations. Among other differ- 
ences, there is one which is very marked : From the point of 
view of international law, the nation has a simple character, 
in that it is and can be subject only to international law. The 
individual man, however, has a composite and mixed char- 
acter, in that he is, at one and the same time, subject to in- 
ternational law, and to the particular law, public and private, 
of his own nation. These two qualities exercise on each other 
a reflex influence. To refuse to regard the individual man as 
an individual person, is to sacrifice the first to the second. 

Has not every man certain fundamental rights ? Without 
regard to the nationality of the individual, are not the 
inviolability of the human person as against the slave trade, 
the security of private property as against piracy, now 
placed under the protection of international law? 

These same writers have this to say regarding the 
rights of individuals, as citizens of a nation, against 
another nation: 



The American Philosophy of Government 21 

Moreover, each individual, however isolated, has every- 
where, as a native of a particular nation or as under its 
jurisdiction, certain rights based on the principles of inter- 
national law. The violation of these rights is an injury, not 
only to the individual, but to the nation of which he is a 
citizen. The subject of the rights of the native inhabitants 
against a foreign conqueror, of the rights of foreigners to 
enjoy special rights against uncivilized natives, the subject 
of naturalization, and of emigration, fall within the juris- 
diction, in varying degrees, both of international law and of 
national law. Do not disputes and conflicts arise between 
nations regarding emigration and naturalization? Is not 
the matter of the extradition of criminals, though it so 
profoundly concerns the individuals charged with crime, 
essentially a matter of public international law? In these 
cases, and in many others, the citizen of a nation finds him- 
self in contact, in relationship or in conflict, not with the 
subjects of another nation, but with the nation itself. It 
is as respects this nation, as an international person, that 
the relationship must be determined, or the dispute settled. 
This relationship or this dispute is of an international kind 
and is subject to be determined by international law, just 
as analogous relationships or disputes arising between a 
nation and one of its own citizens are determined by the 
national law. 

It is important to distinguish, as these writers do, be- 
tween the claims of individuals against a foreign gov- 
ernment based on violation by the foreign government 
of the fundamental rights of the individual and the 
claims of individuals against a foreign government 
based on violation by the foreign government of the 
rights which the individual has as a citizen of his own 
nation. The Constitution of the United States distin- 
guishes between the two classes of cases. The Supreme 
Court of the United States has jurisdiction of all cases 
involving the fundamental rights of the individual (the 



22 The American Philosophy of Government 

Fourteenth Amendment having made the United States 
the guardian of fundamental rights against infringe- 
ment by the States), regardless of whether the com- 
plainant is a citizen of the United States, or of the State 
of which he complains, or whether he is a foreigner. He 
claims these rights simply as a human being, and not 
as a citizen of the United States or of a State. In cases 
not involving fundamental rights, arising between a 
State and citizens of another State or between citizens 
of different States, or between a State, or the citizens 
thereof, and foreign states, citizens, or subjects, the 
Supreme Court has jurisdiction by virtue of the citizen- 
ship of the parties. In this class of cases, the individual 
has rights only as a citizen of a State. 

The truth seems to be that when an individual claims 
that his fundamental rights have been infringed by a 
government, whether the government is his own or a 
foreign one, he appeals neither to international law nor 
to national law, but to a law which is supreme over all 
peoples and all nations, and which grows out of our 
common human nature and the nature of human soci- 
ety. This law no people or nation can " create" ; it can 
only "recognize" it. As respects rights that are not 
fundamental — that is, which are artificial or remedial, 
each individual is subject to the rules of international 
law or of national law according to the nature of the 
case and according to the citizenship of the parties. 
But as respects his fundamental rights, each individual 
and each government is subject to the rules of the 
fundamental and universal law which is supreme over 
both international and national law, and is pervasive 
throughout the whole society of peoples and nations 
regardless of national limits. Though the American 
people have in fact secured the fundamental rights of 
the individual by our own national law, through con- 



The American Philosophy of Government 23 

stitutional prohibitions, we do not regard these funda- 
mental rights as created either by our own national law 
or by international law, but by a law universally per- 
vasive and supreme over both, which we ' 'recognize, " 
and which we consider that we must recognize on pen- 
alty of reversion to barbarism. One may adopt the 
religious hypothesis and call this supreme universal law 
the law of God, or the philosophical hypothesis and 
call it the law of nature, or the juridical hypothesis and 
call it the law of human society. Perhaps the simplest 
way out of the difficulty of determining the source of 
this law is to regard it as a law made by human society 
as an organized unitary community, and to call it "the 
fundamental law," understanding by this that law 
which is supreme over all other human law, whether 
international, national, or municipal, and which deals 
directly with the rights of the individual man as a 
human being as against all human society. As Bonfils 
and Fauchille say, slavery is abolished everywhere be- 
cause society in general feels that it is in violation of 
the fundamental rights of the individual merely as a 
human being regardless of his citizenship, and hence 
destructive of all human society. That there are rights 
of the individual which he has merely as a human being 
and which follow him throughout the world, is proved 
by the fact that each enlightened human being, if he 
searches his own conscience, finds himself compelled so 
to believe. The existence of this law cannot be proved 
by ordinary methods of proof. It must be accepted as 
an axiomatic and self-evident truth. 

The supremacy which the American people attribute 
to the fundamental law is what may be called a limited 
supremacy — a supremacy within a certain definite 
sphere. Just as the Constitution and laws and treaties 
of the United States are not supreme over the Consti- 



24 The American Philosophy of Government 

tutions and laws of the States for all purposes, but only 
for certain purposes which are in fact the general pur- 
poses of the Union, so the American people must nec- 
essarily believe that the public international law is 
supreme only for the general purposes of the whole 
international society over national constitutions and 
laws ; and so also they must necessarily believe the fun- 
damental law is supreme over the public international 
law and all national constitutions and laws only for the 
still more general purpose of securing those fundamental 
rights of the individual which attach to him merely as 
a human being and not as a citizen of the international 
community or of a particular nation. Thus, according 
to the American view, there are four kinds of supreme 
law, but the supremacy of each is within a certain 
sphere. There are certain activities and relationships 
of an individual which are necessary to him as a human 
being equally with all other human beings. Questions 
concerning his rights to these activities and relation- 
ships, whether the rights are claimed against individu- 
als or against the government, are to be determined 
according to the principles of the fundamental law. 
There are other activities and relationships which each 
individual claims and enjoys as a citizen of a nation 
in or against another nation or its citizens. These 
rights are determined by international law. There are 
still other rights which the individual claims and enjoys 
as a citizen of a particular nation within the nation. 
These rights are to be determined by the law of the 
nation of which he is a citizen. In federal states, there 
are rights which the citizen of a state enjoys within 
a state and which are exclusively determined by the 
law of the state. At present the old rule which made 
all governmental action of cities and towns legally 
subordinate to the governmental action of the state 



The American Philosophy of Government 25 

applies, but there are signs that there is arising a con- 
ception of certain rights which a citizen enjoys as a 
citizen of the city or town. The courts within the 
United States actually apply these principles as a mat- 
ter of course in their decision of cases. If, under the 
facts of the particular case and the issues formed in the 
case, the fundamental rights of the individual are in- 
volved, the constitutional prohibitions for the security 
of fundamental rights are applied. If, under the facts 
and issues, the rights of the individual as a citizen of a 
nation in or against a foreign nation, or as a citizen 
of a foreign nation against the nation or a State, are 
involved, the case is decided by international law; if 
the rights of the individual as a citizen of a State against 
another State or of citizens of one State against citi- 
zens of another are involved, the case is determined 
by the law of the United States; if the rights of the 
individual as a citizen of a State within the State are 
involved, the case is determined by State law. 

This hierarchy of laws springs, as has been seen, from 
a hierarchy of communities. At the top stands all 
human society regarded as a single corporate unit, 
which is the theoretical legislator of the fundamental 
law under which each individual has certain rights 
against all other individuals and all governments, simply 
as a human being belonging to this society by reason of 
his creation as a human being. Next comes the feder- 
alists organization composed of all the nations of the 
world — or all the civilized nations — regarded as a con- 
sociation of nations. This consociation is the legislator 
of international law or the law of the society of nations, 
under which each citizen of a nation has certain rights 
against other nations and their citizens, and rights in 
the high seas and other property common to all the 
nations. Next come the particular nations, each of 



26 The American Philosophy of Government 

which is the legislator of its national law under which 
each citizen of the nation has certain rights within the 
nation. In federal states, the nation is the legislator 
of the national law and the State of the State law, and 
each citizen of a State has certain rights under State 
law within the State, different from his rights as a 
citizen of the nation. 

The doctrine of fundamental rights has, however, no 
more necessary connection with the idea of the federal 
state or nation than with that of the unitary state or 
nation. It is equally necessary for the people of a uni- 
tary nation, as for those of a federal one, to recognize 
the fundamental law and to protect the fundamental 
rights of the individual against all other individuals 
and against all governments by constitutional prohi- 
bitions against certain forms of governmental action. 
This is evidenced in the United States by the fact that 
the people of the States impose the same prohibitions 
upon their State governments that the people of the 
United States impose upon the Federal Government. 
It is probably equally true that the idea of a federal 
state or nation gives rise to the idea of a fundamental 
law of human society as a whole and of fundamental 
rights under this law, and that the idea of fundamental 
rights under a fundamental law made by human society 
as a whole gives rise to the idea of a federal state or 
nation. But it is also true that a people may have an 
idea of a universal society, of fundamental law and of 
fundamental rights, without having any experience of 
a federal state or nation, and even though they believe 
in the unitary rather than the federal form of organiza- 
tion. France, with its idea of the rights of man, and 
Great Britain, with its idea of fundamental rights de- 
rived from the constitutional prohibitions upon certain 
forms of governmental action found by experience to be 



The American Philosophy of Government 27 

dangerous or destructive to these rights, show that the 
conception of a fundamental law and fundamental 
rights has no necessary connection with the federal 
form of government. The constitutional prohibitions 
adopted by the people of the United States in the Con- 
stitutional Bill of Rights are in fact collated from Mag- 
na Charta, from the English Petition of Right, from the 
English Habeas Corpus Act, and from the English Bill 
of Rights, as these were developed in the Massachusetts 
Body of Liberties, in the Virginia Declaration of Rights, 
and in the original Constitutions of the States of the 
American Union. 

The real difference between the United States and 
other nations is thus not so much one of the philosophy 
of government, as of the system which we apply to 
make the fundamental law and the fundamental rights 
of the individual practical and effective. No other na- 
tion imposes constitutional prohibitions for the protec- 
tion of these rights upon all its governments and all 
their branches and makes these prohibitions the most 
fundamental part of the supreme law of the land so as 
to make the courts the guardians of these fundamental 
rights. Though we may believe that this system is not 
perfect, it has the tremendous advantage of keeping 
the conception of fundamental law and fundamental 
rights alive in the minds and consciences of the people. 
The knowledge that the most insignificant individual 
may call to his aid the protection of the courts against 
the acts of his State legislature and even against the 
acts of the national Congress if these acts violate these 
fundamental constitutional prohibitions, dignifies the 
individual and keeps before the mind of all the people 
the moral worth of each human being simply as a 
human being, a creation of God, and a member of 
human society. It dignifies government by enabling 



28 The American Philosophy of Government 

the people to regard it in its proper aspect as an agency 
of the people having for the sole object of its institution 
the welfare and development of the individual. It com- 
pels the public official to exercise his power by judgment, 
since he is obliged in each case to decide before he acts 
whether he is acting within the jurisdiction assigned to 
him as an agent of the people to secure fundamental 
rights. There is no particular virtue in written con- 
stitutions in so far as they merely determine the frame 
of organization of the government and the distribution 
of functions between the different branches of the gov- 
ernment and the different corporate members of the 
nation. Their virtue lies in the possibility of establish- 
ing, by means of them, constitutional prohibitions for 
the protection of the fundamental rights of the indi- 
vidual, and of making these prohibitions the funda- 
mental part of the supreme law of the land. The limi- 
tations of power as between the different branches of 
government and the different corporate members of 
the nation may be established under unwritten con- 
stitutions, but the limitations of the power of a govern- 
ment as between itself and the individual can only be 
effectively established by a written constitution enacted 
by the people, in which are inserted constitutional pro- 
hibitions for the protection of the fundamental rights, 
which are by the people declared to be the fundamental 
part of the supreme law of the land, and which are in- 
terpreted and applied by the courts, subject perhaps to 
revision, in extraordinary cases, by an extraordinary 
tribunal established for the purpose. 

It is because the people of the United States be- 
lieve that they have a peculiar system of govern- 
ment which is essential, not only to their own liberty 
and their own society, but to individual liberty and 
human society everywhere, and which they hold in 



The American Philosophy of Government 29 

trust for civilization, that they feel it their duty to 
protect their philosophy and their governmental sys- 
tem from such contact with other systems as might 
endanger its existence. This was the original basis of 
the Monroe Doctrine, and still continues to be its true 
basis. The belief in the fundamental rights of the indi- 
vidual which we hold, destroys all motive for conquest, 
since the only effect of conquest by us is to place upon 
us the difficult task of securing the fundamental rights 
of the individual in the countries annexed. We welcome 
the independence of nations which accept our philoso- 
phy and which honestly recognize the fundamental law 
and do their utmost to preserve fundamental rights. 
The rights of intervention in the affairs of the South 
American Republics, for the purpose of controlling them 
in the interest of Europe, was claimed in 1823 by the 
allied powers of Continental Europe as a logical result 
of their political philosophy and system. President 
Monroe declared that ' ' the political system of the allied 
Powers is essentially different in this respect from that 
of America" and that "this difference proceeds from 
that which exists in their respective governments." 
Asserting that "to the defense of our own system, 
which has been achieved by the loss of so much blood 
and treasure, and matured by the wisdom of their most 
enlightened citizens, this whole nation is devoted," he 
concluded that we owed it "to candor, and to the ami- 
cable relations existing between the United States and 
those Powers, to declare that we should consider any at- 
tempt on their part to extend their system to any part of 
this hemisphere as dangerous to our peace and safety." 
The whole effect of the Monroe Doctrine was that 
the American people were determined that their phil- 
osophy and their system should have every chance of 
surviving in the competition of philosophies and systems 



30 The American Philosophy of Government 

to which it could reasonably be thought to be entitled. 
The philosophy of government then prevailing in Con- 
tinental Europe denied the fundamental rights of the 
individual and asserted that all rights of men were 
created by the nation. The republics of Central and 
South America having established themselves and hav- 
ing nominally accepted the American philosophy of 
government and to some extent the American system, 
the United States asserted that the people of these na- 
tions should be free to develop themselves, hoping and 
believing that in the course of time they would fully 
accept the American philosophy of government and ap- 
ply it effectively in their national affairs. The Monroe 
Doctrine is thus a doctrine of freedom. It had its ori- 
gin in a conflict of philosophies. It had for its purpose 
the protection of the Central and South American 
Republics in developing and working out a philosophy 
and system which they had freely chosen. The Monroe 
Doctrine will die when nations of the world accept the 
belief in the fundamental rights of the individual and 
make these rights practical and effective; for by the 
acceptance of this belief and by the adoption of a 
practical system in accordance with this belief, all mo- 
tive for conquest ceases, and nations will refrain from 
interfering in the internal affairs of other nations, since 
intervention will carry with it the heavy responsibility 
of securing the fundamental rights of the people of the 
invaded country, without possibility of great gains, and 
with only an uncertain compensation. 

The fact that the American people hold this philoso- 
phy of government in which the securing of the funda- 
mental rights of the individual is regarded as the object 
for which all government is instituted among men, pro- 
foundly affects the attitude which American statesmen 
must take in respect to every question growing out of 



The American Philosophy of Government 31 

our foreign as well as our domestic relations. The 
officials of our Department of Foreign Affairs — which 
for historical reasons we call the Department of State — 
as well as our diplomatic officials, accustomed to regard 
the fundamental rights of the individual as the matter 
of prime importance, inevitably and properly apply our 
own constitutional tests to all proposals for joint action 
between the United States and any other nation, in 
the solution of questions arising between this nation 
and any other. To them the old conception of sover- 
eignty, as a power of each nation to do what it wills, is 
impossible, since our philosophy compels us to hold that 
all national action is limited by the fundamental law. 

The American philosophy and system of government 
— or more properly, the failure of other nations to 
accept our philosophy and system — particularly stands 
in the way of international arbitration and the judicial 
settlement of international disputes. With the drawing 
together of the whole world by the increased facili- 
ties for travel and communication, disputes tend more 
and more to be between an individual and a government 
or some branch of it. In every case of this kind there 
is a possibility that the question of the fundamental 
rights of the individual may be involved, so that in a 
similar case arising in the United States, the constitu- 
tional prohibitions for the protection of fundamental 
rights would be applied by the courts and the govern- 
mental action in question might be nullified. In this 
class of cases, when the United States is asked to submit 
to arbitration or judicial settlement, a grave difficulty 
arises. Inasmuch as the peoples of foreign nations do 
not impose constitutional prohibitions on their govern- 
ments for the protection of fundamental rights and do 
not make these prohibitions the fundamental law of the 
land, the courts and the lawyers of European countries 



32 The American Philosophy of Government 

are not accustomed to issues being raised concerning 
the validity of acts of government as respects funda- 
mental rights. As it is necessary that European jurists 
should be in the majority on most arbitral or judicial 
tribunals in international cases, it follows that these 
tribunals are likely to treat some governmental acts as 
valid which we would hold invalid and nullify as in- 
fringing fundamental rights. Thus the United States 
must, for the protection and preservation of its own 
philosophy and system, refrain from submitting to the 
decision of such a tribunal any case which, if arising 
within the United States, would be considered as in- 
volving the fundamental rights of the individual under 
our constitutional prohibitions. So long as this differ- 
ence in philosophies and systems continues, the only 
hope for the extension of international arbitration or 
judicial settlement would seem to be in making all 
action of international arbitral or judicial tribunals 
advisory to the nations which are the parties. This 
would permit these nations themselves to review the 
decision from every standpoint and to protect their own 
philosophies and systems. Acceptance of a decision 
by the parties would greatly increase its weight as a 
precedent for other nations, and would insure the exe- 
cution of the decision by the defeated party. 

The American philosophy of government also stands 
in the way of the codification of international law. No 
American can, consistently with his own fundamental 
beliefs, subscribe to a code of international law which 
does not contain constitutional prohibitions forbidding 
to all peoples, nations, and governments certain forms 
of action dangerous to or destructive of fundamental 
rights, and which does not make these constitutional 
prohibitions fundamental and supreme over all inter- 
national and national law. 



The American Philosophy of Government 33 

The United States is therefore at the present time 
in one sense a disturbing factor in the councils of the 
nations. Its disturbance is not of a physical kind, but 
of an intellectual and spiritual kind. It brings to the 
discussion of all international questions ideas of uni- 
versal law, of fundamental rights of the individual as a 
created human being, of practical protection of these 
rights through constitutional prohibitions on all gov- 
ernments, based on popular and national recognition 
of fundamental law. To some these ideas may seem to 
be destructive, but they are really in the highest sense 
conservative and constructive; for the recognition of 
the rights of man is in no sense inconsistent with the 
recognition of the rights of nations. The American 
philosophy equally recognizes the rights of man and 
the rights of nations, holding that society can exist 
only through local organization, and that nations act- 
ing independently, but in concert, are the most appro- 
priate means of securing the individual in his funda- 
mental rights and in aiding him to extend his powers 
over nature. 

The philosophy of the United States makes for peace. 
The wars which the United States has fought have all 
been for the purpose of protecting the fundamental 
rights of the individual and maintaining the nation as 
the guardian of these rights. There can be no true 
peace except where the individual has his fundamental 
rights, and where these rights are secured to him by 
the power of a nation. It is unlikely that the United 
States will ever apply physical force externally in the 
future except for the same purposes for which it has 
waged wars in the past. Such protective and defen- 
sive action its philosophy permits and in some cases 
demands. 



THE DECLARATION OF INDEPENDENCE 

AS THE FUNDAMENTAL CONSTITUTION 

OF THE UNITED STATES 



35 



THE DECLARATION OF INDEPENDENCE 

AS THE FUNDAMENTAL CONSTITUTION 

OF THE UNITED STATES 

Delivered before the Section for the Study of the Government of 
Dependencies, of the American Political Science Association, at the 
Meeting held at Providence, December 29, 1906. 

YOU have heard ably discussed certain questions 
which arise out of the relationship between the 
American Union and the annexed Insular regions, 
viewed in its sociological and economic aspect. I now 
ask your attention to a question of immediate interest 
and importance growing out of this relationship viewed 
in its political, that is to say, its legal aspect. This 
question, which the Committee on Arrangements has 
called "The Question of Terminology," is: What are 
the correct terms to use in describing the political and 
legal relationship between the American Union and its 
distant annexed regions, assuming that this relation- 
ship is to be permanent and is to be on terms which are 
just to all parties? 

More specifically, the question which I shall discuss 
will be, whether we, as Americans, ought, according to 
American principles, to use, in our political and legal 
language, the terms "colony," "dependence," and "em- 
pire," or whether we ought, according to those princi- 
ples, to substitute for the term "colony," the term "free 
state," for "dependence," "just connection," and for 
"empire," "union." 

It is needless to say that I shall accept the decisions 

37 



38 The American Philosophy of Government 

of the Supreme Court of the United States as final in 
regard to all the matters adjudicated in them. But 
the Supreme Court has jurisdiction only for the purpose 
of determining the rights of individuals. The political 
relations between the Union and the Insular regions, it 
determines only so far as may be necessary to ascertain 
individual rights. Its present doctrine — that the 
American Union has power over the Insular regions 
subject to "fundamental principles formulated in the 
Constitution," or subject to "the applicable provisions 
of the Constitution," protects the civil rights of indi- 
viduals, but under it the power of the Union for political 
purposes remains absolute. The proposition which I 
shall offer for your judgment, will, I believe, not only 
not be in conflict with the propositions laid down by 
the Supreme Court, but will give a reason why they are 
right. It will, too, I believe, give a reasonable basis for 
our holding that the power of the American Union over 
the Insular regions, while ample for the maintenance 
of a just and proper permanent relationship with them 
under our control, is not absolute even as respects their 
political rights. 

I have said that I shall discuss this question upon 
American principles. I shall not base myself on the 
Constitution of the United States, though I shall try 
to show the relation of that document to the question 
as I understand it. I shall assume it to be settled by 
the decisions of the Supreme Court, — as it seems clearly 
to be, — that with the exception of the "Territory" 
clause of that instrument, it is, and of right ought to 
be, the Constitution of the thirteen original States of 
the American Union and of the other States which 
they have admitted into their Union, and of no other 
States or communities; and that therefore it does not 
extend of its own force outside the American Union in 



The Declaration of Independence 39 

any constitutional or legal sense, but only in a meta- 
phorical sense — this being as I understand it, the mean- 
ing of the Court when they hold, as they do, that, 
though the " Territory clause" is of present and uni- 
versal significance as respects all the regions annexed to 
the Union, yet, with this exception, only ''the funda- 
mental principles formulated in the Constitution" are 
in force in the annexed regions. "Extensions," so- 
called, of the Constitution by Act of Congress, are of 
course mere Acts of Congress, and whether such meta- 
phorical "extensions" are permanent will depend upon 
the terms and conditions of the "extension." 

But though I shall not base myself on the Constitu- 
tion of the United States, I shall nevertheless base my- 
self on a great American Document, which preceded the 
Constitution as a statement of American principles, 
and which is so far from being inconsistent with it that 
the Democratic party, in its platform of 1900, called 
it "the Spirit of the Constitution" — I refer to the Dec- 
laration of Independence. It is the American principles 
set forth in that document which I shall try to discover. 
If I shall be adjudged to have rightly interpreted that 
instrument, it will follow that we ought to substitute, 
in our political and legal language, for the term "col- 
ony," the term "free state," for "dependence," "just 
connection," and for "empire," "union." In making 
such substitution, however, it will be necessary to give 
to the terms "free state" and "union," a scientific 
meaning which will differ from that which they now 
have in the popular mind, but which will, I believe, be 
the same as was given to these terms by the Revolu- 
tionary statesmen. 

I shall not allow myself to be embarrassed by the fact 
that in my first published writing I used the terms 
"colony," "dependence" and "empire"; for at the same 



40 The American Philosophy of Government 

time that I used these terms, I based myself on prin- 
ciples which were those of free statehood, just connec- 
tion and union, to which I adhere to this day. 

Taking the Declaration of Independence, therefore, 
as the exposition of the fundamental principles on which 
all American political theory is based, and to which all 
American policy must conform, let me state briefly the 
general meaning and purpose of this instrument, as I 
understand it. , 

As a result of the discussion for twelve years pre- 
ceding the Declaration, the doctrine of the extension of 
the British Constitution to the American Colonies, 
which from their situation, could never be represented 
on equal terms in Parliament, was found to be useless 
for the protection of American rights, political or civil; 
and the doctrine that their rights were dependent on 
the Colonial Charters was found to be inadequate, for 
these Charters, while protecting the civil rights of the 
Americans to some extent, proceeded on the theory that 
they held all their political rights at the will or whim of 
Great Britain. The Americans felt and knew that they 
were entitled to political, as well as civil rights, and 
they all firmly believed that each so-called ' 'colony' * 
was a free state and subject to no external control 
beyond what was necessary to preserve their relation- 
ship with Great Britain on just terms to all the parties. 
This doctrine of free statehood as a universal right is, 
as I understand it, the central idea of the Declaration. 

Assuming this to be the central idea, let us see how 
this idea is reached ; and for that purpose, let us notice 
the exact language of the Declaration. The first para- 
graph reads: 

When in the course of human events, it becomes necessary 
for one people to dissolve the political bands which have con- 



The Declaration of Independence 41 

nected them with another, and to assume, among the powers 
of the earth, the separate and equal station to which the laws 
of Nature and of Nature's God entitle them, a decent respect 
to the opinions of mankind requires that they should declare 
the causes which impel them to the separation. 

The "causes of separation" are prefaced by a number 
of propositions determining the nature of the "political 
bands" by which one people may be "connected with" 
another. These propositions are all rules of human 
conduct, and are therefore principles of law, though 
they are called "self-evident truths." This part of the 
Declaration reads : 

We hold these truths to be self-evident : That all men are 
created equal; that they are endowed by their Creator with 
certain unalienable rights, that among these are life, liberty, 
and the pursuit of happiness; that to secure these rights, 
governments are instituted among men, deriving their just 
powers from the consent of the governed ; that whenever any 
form of government becomes destructive of these ends, it is 
the right of the people to alter or to abolish it, and to institute 
new government, laying its foundation on such principles and 
organizing its powers in such form as to them shall seem most 
likely to effect their safety and happiness." 

The conception of the universal right of free state- 
hood is reached, in the Declaration, through a series of 
three propositions, each stated to be self-evident, and 
yet all forming a sequence. The basal proposition is, 
that "all men are created equal." Rufus Choate and 
John James Ingalls have declared this proposition and 
the succeeding one that "all men are endowed by their 
Creator with certain unalienable rights, that among 
these are life, liberty, and the pursuit of happiness," 
to be "glittering generalities." Abraham Lincoln, on 
the other hand, in his speech at Gettysburg, at the most 



42 The American Philosophy of Government 

solemn and stirring moment in the country's history, 
declared that the proposition that all men are created 
equal was the foundation-idea of the nation, to which it 
was dedicated by the Fathers. 

There are, it is to be believed, many who will be ready 
and willing to accept as true the statement, which every 
student of political history must admit to be true, that 
the philosophy of the American Revolution was a re- 
ligious philosophy. It is indeed perhaps not too much 
to say that the period of the American Revolution 
was the period in which both political and religious 
thinking reached the highest point, and that there is 
no question of government which has since arisen 
which was not either solved by the Revolutionary 
statesmen or put in the process of solution. 

The political philosophy of the American Revolution 
has long been confused with that of the French Revo- 
lution. As matter of fact, they stand at opposite 
poles. Our philosophy was religious, the French non- 
religious. 

From the earliest times, the political philosophy of 
the people of America was directly connected with the 
religious and political philosophy of the Reformation. 
The essence of that philosophy was that man was 
essentially a spiritual being; that each man was the 
direct and immediate creature of a personal God, who 
was the First Cause ; that each man as such a spiritual 
creature was in direct and immediate relationship with 
God, as his Creator; that between men, as spiritual 
creatures, there was no possibility of comparison by the 
human mind, the divine spark which is the soul being 
an essence incapable of measurement and containing 
possibilities of growth, and perhaps of deterioration, 
known only to God; that therefore all men, as essen- 
tially spiritual beings, were equal in the sight of all 



The Declaration of Independence 43 

other men. Luther and Calvin narrowed this philo- 
sophy by assuming that this spiritual nature and this 
equality were properties only of professing Christians, 
but Fox, followed by Penn, enlarged and universalized 
it by treating the Christian doctrine as declaratory of 
a universal truth. Penn's doctrine of the universal 
"inner light," which was in every man from the begin- 
ning of the world and will be to the end, and which is 
Christ, — according to which doctrine every human 
being who has ever been, who is, or who is to be, is 
inevitably by virtue of his humanity, a spiritual being, 
the creature of God, and, as directly and immediately 
related spiritually to Him, the equal of every other 
man, — marked the completion of the Reformation. 

According to this theory, the life of animals who, 
being created unequal, are from birth to death en- 
gaged in a struggle for existence in which the fittest sur- 
vives, is eternally and universally differentiated by a 
wide and deep chasm from the life of men, who, being 
created equal, are engaged in a struggle against the 
deteriorating forces of the universe in which each helps 
each and all, and in which each and all labor that each 
and all may not only live, but may live more and more 
abundantly. 

According to this theory, also, the glaring inequali- 
ties of physical strength, of intellectual power and cun- 
ning, and of material wealth, which are, on a superficial 
view, the determining facts of all social and political life, 
are merely unequal distributions of the common wealth 
and each person is considered to hold and use his 
strength, his talents and his property for the develop- 
ment of each and all as beings essentially equal. 

According to this theory, also, there is for mankind 
no "state of nature" in which men are equally inde- 
pendent and equally disregardful of others, which by 



44 The American Philosophy of Government 

agreement or consent becomes a "state of society" in 
which men are equally free and equally regardful of 
others, but the "state of nature" and the "state of 
society" are one and the same thing. Every man is 
regarded as created in a state of society and brother- 
hood with all other men, and the "state of nature," — 
man's natural estate and condition, — is the "state of 
society." 

Were anyone asked to sum up in the most concise 
form possible the ultimate doctrine of the Reformation, 
he could, perhaps, epitomize it no more correctly than 
by the single proposition, "All men are created equal." 
This doctrine of human equality arising from common 
creation, growing out of Luther anism and Calvinism 
through the intellectual influence of Penn, and the 
broadening effect of life in this new and fruitful land, 
underlay all American life and institutions. 

One of the results of this final theory of the Reforma- 
tion was the conception, by certain devout men and 
great scholars, of a "law of nature and of nations," 
based on revelation and reason, which was universally 
prevalent, and which governed the relations of men, of 
communities, of states and of nations. Out of this 
there had then emerged the conception which has now 
become common under the name of International Law, 
which treats of the temporary relations between inde- 
pendent states. But the conception of the "law of na- 
ture and of nations" was, as has been said, vastly wider 
than this. It was a universal law governing all possible 
forms of human relationship, and hence all possible re- 
lations between communities and states, and therefore 
determining the rights of communities and states 
which were in permanent relationship with one another. 
Based on the theory of the equality of all men by rea- 
son of their common creation, it recognized just public 



The Declaration of Independence 45 

sentiment as the ultimate force in the world for effectu- 
ating this equality, and considered free statehood as 
the prime and universal requisite for securing that free 
development and operation of public sentiment which 
was necessary in order that public sentiment might be 
just. 

While this philosphy of the Reformation was thus ex- 
tending itself in America, both among the Govern- 
ments and the people, and in Europe among the people, 
the Governments of Europe, though not recognizing the 
existence of any "law of nature and of nations" what- 
ever, were nevertheless acting on the basis that such a 
law did exist and was based on the proposition that all 
men are created unequal, or that some are created 
equal and some unequal. The alleged superior was 
sometimes a private citizen, sometimes a noble, some- 
times a monarch, sometimes a government, sometimes 
a state, sometimes a nation. The inferior was said to 
be "dependent" upon the superior — that is, related 
to him directly and without any connecting justiciary 
medium, so that the will of the superior controlled 
the will and action of the inferior. 

We discover, then, from an examination of the 
circumstances surrounding the Declaration of Inde- 
pendence, a most interesting situation. A young na- 
tion, separated by a wide ocean from Europe, settled 
by men who were full of the spirit of the Reformation, 
deeply convinced, after a national life of one hundred 
and fifty years, that these principles were of universal 
application, were suddenly met by a denial of these prin- 
ciples from the European State with which they were 
most intimately related. This denial was accompanied 
by acts of that State which amounted to a prohibi- 
tion of the application of these principles in Ameri- 
can political life. This European State was indeed the 



46 The American Philosophy of Government 

mother-country of America, and the Americans were 
bound to their English brethren by every tie of interest 
and affection. The Americans were only radical 
Englishmen, who gloried in the fact that England of 
all the countries of Europe had gone farthest in ac- 
cepting the principles of the Reformation, and who 
had emigrated reluctantly from England, because they 
were out of harmony with the tendency of English 
political life to compromise between the principles of 
Medievalism and the principles of the Reformation. 
The Declaratory Act of 1766 brought clearly into com- 
parison the political system of America, opposed to the 
political system of Europe. It was inevitable from that 
moment that the American System, based on the 
principles of the Reformation in their broadest sense 
and their most universal application and briefly summed 
up in the proposition that "all men are created equal," 
must conquer, or be conquered by, the European Sys- 
tem, based either on the principles of Medievalism, 
summed up in the proposition that ' ' all men are created 
unequal," or on a compromise between the principles 
of Medievalism and the Reformation, summed up in 
the proposition that "some men are created equal, 
and some unequal." 

The most reasonable interpretation, as it seems to 
me, of the statement that "all men are created equal" 
is, as I have said, that it is, and was intended to be, an 
epitome of the doctrine of the Reformation. There will 
be those who will scoff at the suggestion that a political 
body like the Continental Congress should have based 
the whole political life of the nation upon a religious 
doctrine. But it is to remembered that the Conti- 
nental Congress was not an ordinary political body. 
It was the most philosophic and at the same time the 
most religious and the most intellectually untrammeled 



The Declaration of Independence 47 

body of men who ever gathered to discuss political theo- 
ries and measures. Meeting under circumstances where 
weakness of resources compelled the most absolute just- 
ness in their reasons for taking up arms, they must 
have discussed their positions from the standpoint of 
morality and religion. John Adams tells that one of 
the main points discussed at the opening of the Conti- 
nental Congress, when they were framing the ultimatum 
which finally took the form of the Fourth Resolution 
was, whether the Congress should "recur to the law of 
nature" as determining the rights of America. He 
says that he was "very strenuous for retaining and in- 
sisting on it," and the Resolutions show that he suc- 
ceeded, for they based the American position on the 
principles of "free government" and "good govern- 
ment," recognized that the "consent" of the American 
Colonies to Acts of the British Parliament justly regu- 
lating the matters of common interest was a "consent 
from the necessity of the case and a regard to the mutual 
interests of both countries," and claimed the rights of 
"life, liberty and property" without reference to the 
British Constitution or the American Charters. Jef- 
ferson tells us that throughout the period of nearly 
two years which intervened between the assembling 
of the Congress and the promulgation of the Declaration, 
the principles of the law of nature and of nations set 
forth in the preamble were discussed, and that when he 
wrote the preamble he looked at no book, but simply 
stated the conclusions at which the Congress, with 
apparently practical unanimity, had arrived. 

But it is not necessary, it would seem, to resort to 
to external evidence to prove that the Declaration is 
based on the doctrine of the Reformation. In several 
places it seems to expressly declare that the rights 
claimed by America are claimed under the law of nature 



48 The American Philosophy of Government 

and of nations based on divine revelation and human 
reason. 

From the doctrine of equality arising from the com- 
mon creation of all men by a personal Creator to whom 
all were equally related, it is declared by the Declara- 
tion to follow as a " self-evident " truth that there are 
certain rights, which are attached to all men by endow- 
ment of the Creator as being the correlative of the 
unalienable needs of all men, and which inasmuch as 
they arise from the universal limitations which the 
Creator has imposed, are as unalienable as the needs 
themselves. These unalienable rights are declared to be 
the rights of life, liberty, and the pursuit of happiness. 

The doctrine of unalienable rights, necessarily sup- 
poses a universal law, for the conception of law must 
precede the conception of right. This law, as conceived 
of by the Declaration is a common and universal law. 

In the first part of the preamble this universal common 
law is spoken of as "the law of Nature and of Nature's 
God." Inasmuch as the rights claimed are those which 
depend for their existence upon revelation as well as 
reason, it is evident that this common and universal 
law to which the Declaration appeals, is the "law of 
nature and of nations," of the scholars of the Refor- 
mation, which was conceived of as based on revelation 
and reason, and as governing every relationship of men, 
of bodies corporate, of communities, of states, and of 
nations. Out of this conception there had already 
grown that great division of the law which deals with 
the temporary relations between independent states, 
which we now call International Law. 

Having thus established the doctrine of unalienable 
rights, based on a universal common law of nature and 
of nations, which all men, all bodies corporate, all com- 
munities, all governments, all states, and all nations 



The Declaration of Independence 49 

were bound to enforce, the Declaration proceeds to a 
consideration of the forms, methods, and instrumentali- 
ties by which these unalienable rights are to be secured. 
It declares that the primary instrumentality by which 
these rights are secured, are governments "deriving 
their just powers from the consent of the governed." 
Contrary to the usual interpretation, the Declaration 
does not state that government is the expression of the 
will of the majority. Governments, it is declared, are 
instituted to "secure" the "unalienable rights" of indi- 
viduals. The will of the majority, of course, is quite 
as likely to destroy as to secure the unalienable rights 
of individuals. Moreover, the Declaration says merely 
that "governments are instituted among men" — not 
that men universally institute their own governments. 
The whole statement that the governments which are 
instituted among men to secure the unalienable rights 
of individuals, universally "derive their just powers 
from the consent of the governed," is inconsistent with 
the proposition that governments are the expression 
of the mere will of the majority, for it is only their 
"just powers" that governments "derive" from "the 
consent of the governed," and the will of the majority 
may be just or unjust. The expression "deriving their 
just powers from the consent of the governed" seems 
to me most probably to be an epitome and summary of 
the two fundamental propositions of the law of agency 
— "Obligatio mandati consensus contrahentium consistit, 
a free translation of which is "The powers of an agent 
are derived from the consent of the contracting parties," 
and Rei turpis nullum mandatum est, a free translation 
of which is "No agent can have unjust powers." On 
this interpretation the meaning of the whole sentence 
"that to secure these rights, governments are instituted 
among men, deriving their just powers from the consent 



50 The American Philosophy of Government 

of the governed," is, it would seem, that there is a 
universal right of all communities to have a government 
of a kind best adapted for the securing of the unalien- 
able rights of individuals, instituted either by their own 
selection or by the appointment of an external power, 
and that all governments, however instituted, are uni- 
versally the agents of the governed to secure these 
rights. Government is thus declared not to be the 
expression of the will of the majority, but the applica- 
tion of the just public sentiment justly ascertained 
through forms best adapted for this purpose. 

The free statehood which is claimed in the concluding 
part of the Declaration to be the right of the Colonies 
is by the Declaration based on the philosophical decla- 
rations of the preamble. The particular proposition 
which bears upon the right of free statehood is evidently 
the one which declares that, "to secure these [unalien- 
able] rights [of individuals], governments are instituted 
among men, deriving their just powers from the consent 
of the governed." The intermediate propositions, as 
the result of which the universal right of free statehood 
follows from this proposition, are, it would seem, these: 
If government is the doing of justice according to pub- 
lic sentiment, government is the expression and appli- 
cation of a spiritually and intellectually educated 
public sentiment, since, although a rudimentary know- 
ledge of what is just is implanted in every human being, 
a full knowledge, of what is just, comes only after a 
course of spiritual and intellectual education. Hence it 
follows that the forms and methods of government should 
be such as are adapted to such spiritual and intellectual 
education. Education takes place by direct personal 
contact, and can be best accomplished only through 
the establishment of permanent groups of individuals 
who are all under the same conditions. The formation 



The Declaration of Independence 51 

and expression of a just public sentiment, therefore, 
requires the establishment of permanent groups of per- 
sons, more or less free from any external control which 
interferes with their rightful action, under a leadership 
which makes for their spiritual and intellectual educa- 
tion in justice. Such permanent groups within territorial 
limits of suitable size for developing and expressing a 
just public sentiment, are free states. Territorial divi- 
sions of persons set apart for the purpose of convenience 
in determining the local public sentiment, regardless of 
its justness or un justness, are not states, but are mere 
voting districts. Just public sentiment, for its express- 
ion and application, requires the existence of many 
small free states, disconnected to the extent necessary 
to enable each to be free from all improper external 
control in educating itself in the ways of justice; mere 
public sentiment, for its expression and application, re- 
quires only the existence of a few great states divided 
into voting districts, each district being under the con- 
trol of the Central Government, which is to it an exter- 
nal control. Just public sentiment, as the basis of 
government, is a basis which makes government a 
mighty instrument for spirituality and growth; mere 
public sentiment, regardless of its justness or unjustness, 
as the basis of government, is a basis which makes 
government a mighty instrument for brutality and 
deterioration. Human equality, unalienable rights, 
government according to just public sentiment, and 
free statehood, are inevitably and forever linked to- 
gether as reciprocal cause and effect. 

The ultimate meaning of the expression "that to se- 
cure these rights governments are instituted among 
men, deriving their just powers from the consent of 
the governed," seems therefore to be that by the com- 
mon law of nature and of nations there is a universal 



52 The American Philosophy of Government 

right of free statehood which pertains to all communi- 
ties on the face of the earth within territorial limits of 
suitable size for the development and operation of a 
just public sentiment. 

So complete and universal are the principles of gov- 
ernment by just public sentiment and of free statehood 
that, according to the Declaration, even when all the 
people of a free state are meeting together to alter or 
abolish a form, of government which has become de- 
structive of the ends of its institution, as it is declared 
they may rightfully do, their right to form a new gov- 
ernment is not absolute so that they can rightfully do 
whatever the majority wills, but is limited by this uni- 
versal common law, so that they can rightfully institute 
only a new form of government whose foundation prin- 
ciples and mode of organization are such "as to them 
shall seem most likely to effect their safety and happi- 
ness" — that is, to secure the unalienable rights of indi- 
viduals to life, liberty, and the pursuit of happiness. 

The declaration of the universal right of free state- 
hood is accompanied, in the Declaration, by the claim 
that the Colonies, as free states, had always been in 
political "connection" with the State of Great Britain. 
The concluding part of the Declaration reads: 

We, therefore, . . . declare that these United Colonies 
are, and of right ought to be, free and independent states, 
. . . and that all political connection between them and the 
State of Great Britain is, and ought to be, totally dissolved. 

In this it was necessarily implied that the Colonies 
had always been free states or free and independent 
states, and that, by the Declaration, at most their right 
of independent statehood came into existence; that 
they had theretofore at all times been in political con- 



The Declaration of Independence 53 

nection, either as free states under the law of nature 
and of nations, or as free and independent states by- 
implied treaty, with the free and independent State of 
Great Britain; that the dissolution of the connection 
had not come about by an act of secession on their 
part, but was due to the violation, by the State of 
Great Britain, either of the law of nature and of na- 
tions, or of the implied treaty on which the political 
connection was based. 

The term "connection" was an apt term to express a 
relationship of equality and dignity. "Connection" 
implies two things, considered as units distinct from one 
another, which are bound together by a connecting 
medium. Just connection implies free statehood in all 
the communities connected. Union is a form of con- 
nection in which the connected free states are consoli- 
dated into a unity for the common purposes, though 
separate for local purposes. Merger is the fusion of two 
or more free states into a single unitary state. Con- 
nection between free states may be through a legislative 
medium, or through a justiciary medium, or through an 
executive medium. The connecting medium may be a 
person, a body corporate, or a state. States connected 
through a legislative medium, whether a person, a body 
corporate or a state, and whether wholly external to 
the states connected or to some extent internal to them, 
whose legislative powers are unlimited or which deter- 
mines the limits of its own legislative powers, are 
"dependent" upon or "subject" to the will of the 
legislative medium. Such states are "dependencies," 
"dominions," "subject-states," or more accurately 
"slave-states," — or more accurately still, not states at 
all, but mere aggregations of slave-individuals. States 
connected through a legislative medium, whether a per- 
son, a body corporate, or a state, and whether wholly ex- 



54 The American Philosophy of Government 

ternal to the states connected or in part internal to them, 
whose legislative powers are granted by the states and 
which have only such legislative powers as are granted, 
are in a condition of limited dependence, dominion, and 
subjection; but their relationship is by their voluntary 
act and they may, and by the terms of the grant always 
do to some extent control the legislative will to which 
they are subject and on which they are dependent. 
Where states are connected or united through a jus- 
ticiary medium, whether that justiciary medium is 
a person, a body corporate, or a state, all the states 
are free states, their relationships being governed by 
law. Where states are connected through an executive 
medium, whether that executive medium is a person, a 
body corporate, or a state, all the states are free and in- 
dependent states, and each acts according to its will. All 
connections in which the legislative medium, — whether 
a person, a body corporate or a state, and whether 
wholly external to the states connected, or to some 
extent internal to the states connected, — has unlimited 
legislative powers or determines the limits of its own 
legislative powers, are fictitious connections, the rela- 
tionship being really one which implies "empire" or 
"dominion" on one side, and "subjection" or "depen- 
dence" on the other. Such connections are properly 
called "empires" or "dominions." So also all connec- 
tions in which the only connecting medium is a common 
executive, whether a person, a body corporate or a 
state, are fictitious connections, the relationship being 
one of "permanent alliance" or "confederation" be- 
tween independent states. Such connections are prop- 
erly called "alliances" or "confederations." The only 
true connections are those in which there is a legislative 
medium, whether a person, a body corporate or a state, 
whose legislative powers are limited, by agreement of 



The Declaration of Independence 55 

the connected states, to the common purposes, and those 
in which there is a justiciary medium, whether a person, 
a body corporate, or a state, which recognizes its powers 
as limited to the common purposes by the law of nature 
and of nations, and which ascertains and applies this 
law, incidentally adjudicating, according to this law, 
the limits of its own jurisdiction. Just connections 
tend to become unions, it being found in practice nec- 
essary, for the preservation of the connection in due 
order, that the power of limited legislation for the com- 
mon purposes and the power of adjudicating and apply- 
ing the law for the common purposes should extend 
not only to the states, but to all individuals throughout 
the states. 

Thus "dependence," as a fictitious and vicious form 
of connection, is, it would appear, forever opposed to 
"connection" of a just and proper kind. If it were 
attempted to sum up the issue of the American Revo- 
lution in an epigram, would not that epigram be: 
"'Colony,' or 'Free State?' 'Dependence,' or 'Just Con- 
nection?' 'Empire,' or 'Union?'" 

According to the opinion of the Revolutionary states- 
men, as it would seem, a universal right of free statehood 
does not imply a universal right of self-government. 
Statehood and self-government are two different and 
distinct conceptions. The Americans claimed the right 
of free statehood as a part of the universal rights of 
man, but they claimed the right of self-government 
because they were Englishmen trained by generations 
of experience in the art of self-government and so ca- 
pable of exercising the art. A state is not less or more 
a free state because it has self-government. It is a 
free state when its just public sentiment is to any extent 
ascertained and executed by its government, — however 
that government may be instituted, — free from the 



56 The American Philosophy of Government 

control of any external power. It does not prevent a 
region from being a free state that its government is 
wholly or partly appointed by an external power, if 
that government is free from external control in ascer- 
taining and executing the just local sentiment to any 
extent. Nor does it interfere with the right of free 
statehood when an external power stands by merely to 
see that the local government ascertains and executes 
the just local sentiment to a proper extent. The exter- 
nal power in that case is upholding the free statehood 
of the region. It stands as surety for the continuance 
of free statehood. 

The right of self-government, according to this view, 
is a conditional universal right of free states. When a 
community, inhabiting a region of such territorial ex- 
tent that it is not too large to make it possible for a just 
public sentiment concerning its affairs to be developed 
and executed, and not so small as to make it incon- 
venient that it should be in any respect free from exter- 
nal control, is of such moral and intellectual capacity 
that it can form and execute a just public sentiment 
concerning its internal affairs and its relations with 
other communities, states and nations, it has not only 
the right of free statehood, — that is, of political per- 
sonality, — which is of universal right, but also the right 
of self-government. The right of such a free state to 
self-government is complete if there be no just political 
connection or union between it and other free states, 
or partial, if such a just connection or union exists, 
being limited, in this latter case, to the extent necessary 
for the preservation, in due order, of the connection or 
union. 

Independence was regarded apparently also, by the 
Declaration, when it declared the Colonies to be "free 
and independent states," to be a right superadded to 



The Declaration of Independence 57 

the right of free statehood in some cases, and there- 
fore to be a conditional universal right of free states 
— that is, a right universally existing where the con- 
ditions necessary to independence — great physical 
strength, and great moral and intellectual ability — 
exist. 

The Colonies regarded themselves as free states in 
such a just and rightful connection with the free and 
independent State of Great Britain as to form with it 
a union. From this it followed, inasmuch as this con- 
nection and union was conceived of as existing under a 
universal common law, that the State of Great Britain, 
through its Government, was the justiciary medium 
which connected the free states of that which they con- 
ceived of as the British- American Union, and as such 
applied the principles of this universal common law 
for preserving and maintaining in due order the con- 
nection and union. There, therefore, resulted the con- 
ception of Great Britain as what may perhaps be called 
''the Justiciar State" of this British-American Union. 
If we were to use the exact language of the Revolution, 
it would probably be more proper to speak of Great 
Britain as "the Superintending State" of the British- 
American Union, as the power of Great Britain over 
the Colonies was generally spoken of by the Americans 
as "the superintending power." Lord Chatham used 
this expression in his famous bill introduced in the 
House of Lords. The expression "Justiciar State," 
however, seems to be more scientifically correct. A 
Justiciar was an official who exercised the power of 
government in a judicial manner. His power was nei- 
ther strictly legislative, nor strictly executive, nor 
strictly judicial, but was complex, being compounded of 
all three powers, so that his executive action, taken 
after judicially ascertaining the facts in each case and 



58 The American Philosophy of Government 

applying to them just principles of law, resulted in 
action having the force of legislation. 

The Revolutionary statesmen have left a very con- 
siderable literature showing their views concerning the 
nature of the right of a state to be the Justiciar State 
of a Union of States, and concerning the powers which 
a Justiciar State may rightfully exercise. 

Arguing on the same basis as that adopted by them 
regarding the right of self-government and indepen- 
dence, it appears that they considered the right of a 
state to act as Justiciar for other states to be a right 
superadded to the right of self-government and inde- 
pendence in some cases — that is, that justiciarship is a 
conditional universal right of self-governing and inde- 
pendent states, the conditions necessary to its existence 
being great physical strength, a judicial character and 
a capacity for leadership. 

The power exercised by a Justiciar State in a Jus- 
ticiary Union, they recognized as being neither strictly 
legislative, nor strictly executive, nor strictly judicial, 
but a power compounded of all these three powers. 
They considered that it was to be exercised for the 
common purposes after investigation by judicial 
methods; that the just public sentiment of the free 
states connected and united with the Justiciar State 
was to be considered by it in the determination of the 
common affairs; and that the action of the Justiciar 
State was to result, after proper hearing of the free 
states and all parties concerned, in dispositions and 
regulations made according to just principles of law, 
which were to have the force of supreme law in each of 
the connected and united free states respectively. This 
kind of power, which the Fathers called ''the superin- 
tending power" or "the disposing power" under the 
law of nature and of nations, and which may be called, 



The Declaration of Independence 59 

using an expression now coming into use, "the power of 
final decision," or more briefly "the justiciary power," 
being neither legislative, executive, nor judicial, but 
more nearly executive than legislative, the more con- 
servative among them considered might be exercised, 
consistently with the principles of the law of nature 
and of nations, either by the Legislative Assembly of 
the Justiciar State or by its Chief Executive, advised 
by properly constituted Administrative Tribunals or 
Councils ; the action of the Legislative Assembly super- 
seding that of the Chief Executive in so far as they 
might be inconsistent with each other. This right of 
both the Legislative Assembly and of the Chief Execu- 
tive, properly advised, to exercise the powers of the 
Justiciar State — the former having supreme, and the 
latter superior justiciary power, — under the law of na- 
ture and of nations, is, I believe, also recognized by our 
Constitution, as I have elsewhere attempted to show. 

Of course there must be conditions of transition where 
the relations between free states which would normally 
be in union, or between detached portions of what 
would normally be a unitary state, temporarily assume 
a form which is partly one of union or merger, and 
partly of dependency. The justification of all such 
forms of relationship must, it would seem, be found in 
the fundamental right which every independent state, 
whether a justiciar state or not, has to the preservation 
of its existence and its leadership or judgeship — that 
is, in the right of self-preservation, which, when neces- 
sary to be invoked, overrules all other rights. On this 
theory must, it would seem, be explained the relations 
between the American Union and its Territories, be- 
tween Germany and Alsace-Lorraine, and between 
England and Ireland. On this theory of self-preser- 
vation, also, must, it would seem, be explained the 



60 The American Philosophy of Government 

permanent relationship of dependency which exists 
between the District of Columbia and the American 
Union — such dependency being necessary to the preser- 
vation of the life of the Union. 

Out of the conception of a universal common law of 
nature and of nations which governs all human acts 
and relationships, — and therefore all the acts and rela- 
tionships of states and nations as well as of men, bodies 
corporate and communities, — there has arisen and at 
the present time exists, a science of the universal and 
common law of the state, called the Science of the Law 
of the State, which concerns itself with the internal 
relations of a state to its people, its bodies corporate and 
its communities, and a science of the universal and com- 
mon law of independent states, called the Science of 
International Law, which concerns itself with the occa- 
sional and temporary relations of independent states. 
The great field of law which concerns the permanent 
relations of free states is not yet covered by a recog- 
nized science. Must there not therefore emerge from 
this conception of a universal and common law of 
nature and of nations, a third science of law, covering 
this field, which will take as its basal proposition the 
doctrine that free statehood is the normal and rightful 
condition of all communities on the earth's surface 
within suitable limits for the formation of a just public 
sentiment, and which will concern itself with the per- 
manent relations between free states? As such per- 
manent relations must always be by just connection, 
either in its simple form or in the form of union, may 
not such a science of law, standing between the science 
of the Law of the State and the science of International 
Law, be called the science of the Law of Connections 
and Unions of Free States? 

Taking the whole Declaration together, and reading 



The Declaration of Independence 61 

it in the light of the political literature which was put 
forth on both sides of the water between the years 1764 
and 1776, it seems to be necessary to conclude that the 
views of the most conservative of the American states- 
men of the period concerning the connection between 
Great Britain and the Colonies were these: 

They considered, as I interpret their language, that the 
connection between the free and independent State of 
Great Britain, and the American Colonies, as free states, 
had existed and of right ought to have existed, accord- 
ing to the principles of the law of nature and of nations 
— that law being based on principles opposed to the 
principles applied by the governments of Europe, and 
being thus what may be called a law of nature and of 
nations according to the American System. Had they 
used a more definite and scientific phraseology, it seems 
that their view would best be expressed by saying that 
they considered that the relationship between Great 
Britain and the Colonies had always existed according 
to the principles of the Law of Connections and Unions 
of Free States. They accordingly admitted, as I under- 
stand them, that Great Britain, as a free and indepen- 
dent state, had power, as Justiciar, over the American 
Free States, for the common purposes of the whole 
Union, to finally decide, by dispositions, ordinances and 
regulations having the force of supreme law, made 
through its Government after a judicial hearing in each 
case for the investigation of facts and the application 
to them of the principles of the Law of Connections 
and Unions of Free States, upon all questions of com- 
mon interest arising out of the connection and union; 
and that each of the American Free States had power, 
through its Legislature, to legislate according to the 
just public sentiment in each, and the right to have its 
local laws executed by its Executive and interpreted 



62 The American Philosophy of Government 

and applied by its Courts, free from all control by the 
State of Great Britain, except what was necessary to 
protect and preserve the Union. 

In this view, the actions of the Americans show the 
evolution of a continuous theory and policy, and the 
application of a single American system of principles, — 
a system which was based upon free statehood, just 
connection and union. The British-American Union of 
1763 was a Union of States under the State of Great 
Britain as Justiciar, that State having power to dispose 
of and make all rules and regulations respecting the 
connected and united free states, needful to protect 
and preserve the connection and union, according to 
the principles of the Law of Connections and Unions. 
The dissolution of this Union, caused by the violation 
by the State of Great Britain of its duties as Justiciar 
State, gave a great impetus to the extreme states'- 
rights party, and the next connection formed, — that of 
1778 under the Articles of Confederation, — was not a 
Union, the Common Government (the Congress) being 
merely a Chief Executive. Such a connection proving 
to be so slight as to be little more than a fiction, they 
formed, under the Constitution of 1787, the only other 
kind of a union which appears to be practicable, namely, 
a union under a common government which was a Chief 
Legislature for all the connected and United States by 
their express grant, and whose powers were expressly 
limited, by limitation in the grant, to the common pur- 
poses of the whole connection and union of free states. 

If the Constitution, in defining what are the common 
purposes of the Union and what the local purposes of 
the States of the Union, is declaratory of the principles 
of the Law of Connections and Unions of Free States, 
as it seems not unreasonable to hold, the Limited Legis- 
lative Union formed under the Constitution may per- 



The Declaration of Independence 63 

haps be considered, in view of the supremacy of the 
Judiciary, as Guardians of the Constitution, over the 
Limited Legislature, as a species of Justiciary Union. 

Moreover, if in what has been said we are correct, 
the relationship at present existing between the Ameri- 
can Union and the Insular regions, is that of de facto 
Justiciary Union, and the American Congress, under the 
lead of President McKinley and President Roosevelt, 
has acted, with reference to these regions, according to 
the principles of the American system. The American 
Union, through President McKinley, has declared itself 
to be "a liberating, not a conquering nation," and has 
recognized the people of Hawaii, Porto Rico and the 
Philippines as each having a separate and local citizen- 
ship, thus recognizing each of these regions as a de 
facto free state connected with the American Union. 
The action of the American Union extends to the regu- 
lation of the action of individuals in these free States, 
so that a Greater American Union of Free States exists 
de facto. To bring into existence a Greater American 
Union de jure, it needs, first, the public and express 
recognition by the American Union of itself as the Jus- 
ticiar State, and of each of the separate Insular regions 
within proper territorial limits, as a Free State in just 
connection and union with the American Union; and, 
secondly, the establishment by the American Union 
of the necessary Advisory Council for investigating 
facts and for advising the President before he, on behalf 
of the American Union as Justiciar State, exercises his 
superior justiciary powers, and for advising the Con- 
gress before it, in the same behalf, exercises its supreme 
justiciary powers. Councils suitable for advising the 
local Governors, when they, on behalf of the American 
Union as Justiciar State, exercise their inferior justici- 
ary powers, already exist. Of such a Greater American 



64 The American Philosophy of Government 

Union, the present American Union would be the Su- 
preme Justiciary Head, with power to finally determine 
the questions arising out of the relationship, not by 
edict founded on will and force, but by decision care- 
fully made in each case after ascertaining the facts in 
each case and applying to them the principles of the 
Law of Connections and Unions properly applicable to 
them. 

Is not this theory the true via media? The theory 
of the automatic extension of the constitution of a state 
over its annexed insular, transmarine and transter- 
ranean regions which from their local or other circum- 
stances can never equally participate in the institution 
and operation of its government, in some cases protects 
individual rights, but it takes no account of the right 
of free statehood, which is the prime instrumentality 
for securing these rights. The theory of a power over 
these regions not regulated by a supreme law, is a the- 
ory of absolute power over both individuals and com- 
munities in these regions — a theory which implies an 
absence of all rights. The theory of a power over these 
regions based on the principles of the Law of Connec- 
tions and Unions, granting that this law is itself based 
on the right of human equality, protects the rights of 
persons, of communities, of states, and of nations. On 
this theory the " Territory Clause" of the Constitution 
recognizes the Law of Connections and Unions as 
determining the relationship between the American 
Union and the Insular regions — ' 'needful" rules and 
regulations being those which are adapted to accom- 
plish the end desired and which are consistent with the 
principles of the Law of Connections and Unions as 
declared in the Declaration of Independence. On this 
theory, the doctrine of the Supreme Court that the civil 
rights of individuals in cases growing out of our rela- 



The Declaration of Independence 65 

tions with our Insular brethren are protected by "the 
fundamental principles formulated in the Constitution," 
or by "the applicable provisions of the Constitution," 
is translated into the doctrine that these individual 
and civil rights are protected by the principles of 
the Law of Connections and Unions of Free States, 
as these principles are formulated in the Constitution 
and as they are disclosed by an examination of the 
applicable provisions of the Constitution, and that not 
only are these civil rights protected by this law, but 
also the political rights of all the parties to the relation- 
ship. On this theory, the jurisdiction of the Supreme 
Court continues to be exactly the same as at present. 
The necessary Advisory Councils for ascertaining the 
just political relations between the American Union and 
the Insular regions and for determining the political 
rights growing out of that relationship, would not in 
the least interfere with the Supreme Court in the exer- 
cise of its functions. They would supplement that 
Court, which now protects the civil rights of all 
concerned through its adjudications in civil cases, by as- 
sisting the Congress and the President to protect and 
preserve the politic rights of all concerned through 
dispositions and neecual rules and regulations in polit- 
ical cases. 

By adopting this theory of the Reformation and the 
American Revolution, may not the American System 
extend indefinitely without danger to America herself? 
There would be no domination, no subjection. The 
same Law of Connections and Unions would extend 
over and govern throughout the whole Greater Ameri- 
can Union. This Greater American Justiciary Union 
would be but a logical application of the principles under- 
lying the American Legislative, Executive, and Judicial 
Union formed by the Constitution of the United States. 



66 The American Philosophy of Government 

It would not be the Constitution which would follow 
the flag into the regions which America has annexed to 
herself, but the Law of Connections and Unions, which 
is a part of the Law of Nature and of Nations according 
to the American System. 

I recur, therefore, to my first proposition and submit 
to your judgment whether the terms * 'colony," ' 'de- 
pendence," and "empire," on the one hand, and the 
terms "free state," "just connection," and "union," on 
the other, are not the symbols of two great and funda- 
mentally opposed systems of politics — the one Euro- 
pean, and the other American; whether the American 
terms and the American System are not capable of 
being applied universally and beneficently, in the way 
pointed out above, throughout all places outside the 
present Union which are within the limits of its jus- 
ticiary power; and whether, if they are capable of this 
application, it is not our duty, both logically and ethi- 
cally, to use the American terms in describing the rela- 
tions between us and our Insular brethren, applying at 
the same time the principles of the American System, 
and thus calling into existence a Greater American 
Union. 



THE DEVELOPMENT OF THE AMERICAN 

DOCTRINE OF JURISDICTION OF 
COURTS OVER STATES 



67 



THE DEVELOPMENT OF THE AMERICAN 

DOCTRINE OF JURISDICTION OF 

COURTS OVER STATES 

Reprinted from "Judicial Settlement of International Disputes," 
May, 191 1. 

BY the Articles of Confederation, the American 
States made the United States, in Congress 
assembled, "the last resort on appeal" in all 
disputes between them, and authorized the Congress, 
upon the complaint of any State against another, to 
institute a special tribunal, according to a method pre- 
scribed by the Articles, for the final decision of the 
dispute. By the Constitution, the people of the United 
States and the States of the Union established a Su- 
preme Court of the United States and made it a tribunal 
for the judicial settlement of all interstate and interna- 
tional disputes in which the United States or the States 
of the Union might be involved with each other or with 
foreign states, and which were capable of being settled 
by the exercise of "the judicial power" of the United 
States. By these two documents, therefore, it was re- 
cognized as an American doctrine that disputes between 
states may, under some circumstances, properly be 
settled according to the decision of courts — or, to put it 
inversely, that courts may, under some circumstances, 
properly have jurisdiction over states. 

Now that the states of the society of nations are on 
the point of establishing a Court of Arbitral Justice for 
the settlement of such international disputes as are ca- 

69 



70 The American Philosophy of Government 

pable of judicial determination, it becomes interesting 
to discover the process by which the Supreme Court of 
the United States has been evolved. It may be that 
by tracing this line of development, some light may 
be thrown upon the questions which are now presenting 
themselves in regard to the proposed international 
court. 

The institutions of a people are in part the expressions 
of their political, social, and economic beliefs, and in 
part the result of experiments made by them and of 
improvements upon institutions which have stood the 
test of experiment. It is necessary, therefore, in this 
inquiry, to examine first the nature of the political, 
social, and economic beliefs of the founders of the 
American commonwealth; then, to investigate their ex- 
perience in the working of those institutions set over 
them by England as their mother country, or estab- 
lished by themselves, which bore an analogy to the 
Supreme Court of modern times, and to ascertain the 
process by which these early institutions were improved 
and adapted to the changing environment. 

In our search for the political doctrine held by the 
American colonists which may reasonably be thought 
to have manifested itself in our Supreme Court, we per- 
haps may find a clue in a remark made by Grotius in 
his " Three Books of Peace and War." Describing the 
power which a State ought to exercise over its colonies 
(lib. i, cap. iii, sec. 21), he says that while the Latins 
described the power of the mother city or state by the 
word imperare, to command, and regarded it as having 
the imperium, or empire, over the colonies, the Greeks 
"more modestly" described the power of the mother 
city by the word xaaasiv, to dispose or set in order, 
and regarded the mother city as having the r^s^ovta 
that is, the hegemony, leadership in judgment or su- 



Jurisdiction of Courts Over States 71 

preme jurisdiction. The American colonists regarded 
England, their mother country, as the Greek colonists 
regarded their mother city. They recognized that 
England had a leadership in judgment and hence a 
supreme jurisdiction over the Colonies for the purpose 
of disposing and setting in order their affairs to the 
extent that might be necessary for the common defense 
and for the general welfare, but they denied its power 
to command. They insisted that the execution of the 
judgments of the mother country was of right in the 
Colonies and that, in extreme cases, where its decisions 
were palpably unjust, the Colonies might refuse to 
adopt or execute them. 

The American colonists went farther, and denied to 
their own governments and to all governments the 
power of absolute command, holding that government 
in every form is essentially leadership in judgment. 
To place it beyond doubt that their governments did 
not have the imperium of the Latins, but only the hege- 
mony of the Greeks, they adopted the custom of bind- 
ing their governments by written constitutions regarded 
as emanating from the people, limiting the powers 
which the government was authorized to exercise and 
placing it in the position of an authorized agent of the 
people. Their representative assemblies they called, in 
some cases, general courts; and they held the members 
of such assemblies responsible as members of a supreme 
tribunal. Every act of government they regarded as 
an act of judgment, and they considered that the per- 
sons appointed to govern were but the leaders in the 
judgment. They held that the final judgment rested 
in the whole people, who confirmed by their acquies- 
cence and conformity those acts of government which 
by common consent were regarded as necessary and 
just, and who ultimately nullified such acts of govern- 



72 The American Philosophy of Government 

ment as by common consent were regarded as unneces- 
sary and unjust. With regard to every governmental 
act, the question in their minds was, whether the act 
in question appealed to their reasons and consciences 
as necessary and just under the circumstances. If the 
general consensus was that the act of government was 
necessary and just, the people executed it as a matter 
of choice and free will. Governmental commands and 
prohibitions, in their view, thus derived their force 
from the judgments on which they were based and on 
the general acquiescence in the judgment as necessary 
and just. 

The social ideas of the American colonists were based 
upon Christianity. The people were thus at the same 
time individualists and humanitarians and sought to 
find the middle ground between selfishness and altruism. 
They believed in the equality of all men before God by 
reason of the common and equal creation of all men 
by God, and held to the conception of a law of nature 
imposed by God, which is supreme over all human ac- 
tion and relationship and to which all men, states, and 
peoples are equally subject. This law of nature was to 
their mind composed of those principles of natural jus- 
tice, based primarily on the equal right and duty of 
self -protection and self-preservation, which are im- 
planted in man by God, and which are in part revealed 
and in part discoverable by the enlightened reason and 
conscience. All governmental acts they believed were 
to be judged by the people according to this supreme 
law. 

The economic ideas of the American colonists were 
similar to their social ideas. As individualists they op- 
posed monopoly and caste and believed in the funda- 
mental rights of self -protect ion and self-preservation, 
called the rights of life, liberty, and property. As hu- 



Jurisdiction of Courts Over States 73 

manitarians they believed that trade, commerce, and in- 
tercourse ought to be free and universal, limited only by 
the necessities of self -protection and self-preservation. 

Holding these views, the American colonists regarded 
the colonies as commonwealths and free states, and at 
the same time thought it not inconsistent that these 
free states and commonwealths should be parts of the 
English empire and the English commonwealth. They 
willingly assented to those provisions of the colonial 
charters which required that the governmental acts of 
the colonies should be consistent and harmonious with 
the governmental acts of England. The effect of this 
was, to make the law of England a supreme law of the 
colonies, governing, not only the people of the colonies, 
but the colonies themselves. But to this law they could 
not yield absolute supremacy consistently with their 
conception of a supreme and universal law of nature 
emanating from God. They therefore regarded the 
English empire and commonwealth, and each of the 
constituent states, as subject in the first instance to 
the law of England as a supreme law, but as also sub- 
ject in the last resort to the law of nature. The English 
and colonial courts and governments also recognized 
the law of nations, composed of the principles of inter- 
national conduct and relationship agreed upon by inde- 
pendent states and manifested in treaties or in their 
political action, though even this law the American colo- 
nists regarded as subordinate to the law of nature. 
Disputes between the states forming the English empire 
and commonwealth, involving questions capable of 
judicial determination, were thus to be decided by 
courts. The local law of the colony was applied in 
cases where it was solely applicable, and the law of 
England or the law of nations were also applied where 
applicable, the one or the other being supreme according 



74 The American Philosophy of Government 

to the nature of the case ; the law of nature governing 
all cases not covered by the other laws and being su- 
preme over all. 

Realizing, however, that there were disputes between 
states, as between individuals, involving dignity or 
vital interests, which were not susceptible of decision 
by the cold and dispassionate methods of investigation 
and adjudication, and which could only be settled by 
methods taking into account passions, sentiments and 
prejudices, they believed that the settlement of dis- 
putes between the states composing the English empire 
and commonealth ought to be in the charge of a 
specially constituted tribunal fitted by training to act 
judicially where the judicial method was applicable and 
to act diplomatically where the judicial method was 
inapplicable. Yielding reasonable deference to Eng- 
land as the mother country, they were willing to entrust 
her with the duty of establishing and maintaining such 
a tribunal. During the colonial period, the people of 
the colonies consented that the arbitration or adjudica- 
tion of disputes between the colonies or between one 
or more of the colonies and England should be con- 
ducted before tribunals in England established by the 
English government for that purpose. When by the 
Revolution there ceased to be a mother country to act 
as arbitrator and judge between the American States, 
it was inevitable that their political, social, and eco- 
nomic beliefs should find expression in a system of 
their own for carrying on such arbitrations and ad- 
judications. 

Having thus attempted to form some conclusion 
concerning the development of the doctrine of juris- 
diction of courts over states as a matter of political, 
social and economic belief, it becomes necessary to 
examine the experience of the Americans in the work- 



Jurisdiction of Courts Over States 75 

ing of institutions which culminated in the establish- 
ment by them of the Supreme Court of the United 
States. 

It may be objected that such an investigation is 
without practical value as bearing upon the institution 
of the proposed Court of Arbitral Justice, because the 
institutions of which the Americans had experience 
were those which existed under a political union formed 
by England and the Colonies and held together by the 
power of England. Such institutions, it may be urged, 
have no resemblance to or bearing upon the institu- 
tions which a body of independent states would find it 
for their interests to form. 

It must indeed be admitted that the tribunals in 
England which settled the disputes of the American 
Colonies were the product of English statesmanship 
supported by English force, and that these institutions 
were accepted by the colonies and in no sense created 
by them. At the same time, it is to be remembered 
that all unions or combinations of individuals or states 
arise out of the same circumstances and have the same 
objects — they are for the common defense and for the 
general welfare. It matters little from what standpoint 
each of the parties enters upon the negotiations. 
Whether they start from a position of assumed equality 
or from a position of assumed inequality, the union or 
combination will tend to perfect itself by conforming to 
the facts as they exist, and the institutions of the union 
or combination will tend to take the form which best 
suits the needs of all the parties. In spite, therefore, of 
the fact that the Supreme Court of the United States 
had its origin in the institutions of the English empire 
and commonwealth and the British empire, and exists 
today as an institution of the American Union, it by 
no means follows that American experience of these 



76 The American Philosophy of Government 

institutions may not be of value at this time to the 
states of the society of nations. 

In the English realm and empire, from the earliest 
times until the Revolution of 1641, the tribunal known 
as "the King (or the Queen) in Council" played the 
most important part. From 1660 until about 1770, it 
had a settled and peculiar jurisdiction, as opposed both 
to the jurisdiction of the body known as the Parliament, 
established in 1295, composed of King, Lords, and Com- 
mons, and to that of the ordinary courts of justice of 
the realm. The King in Council was legally the King 
advised by his Privy Council. This council was com- 
posed of men selected by the King for their social in- 
fluence and their expertness in statesmanship, law, and 
economics. By their advice the King made treaties 
with independent states, exercised jurisdiction over an- 
nexed countries, and carried on the government of the 
realm according to customary principles and according 
to Parliamentary acts. 

During the reign of Elizabeth, the government of 
England was carried on almost entirely by the Queen 
in Council. Few Parliaments were held, and the ac- 
tion of those which were held was largely devoted to 
registering the decrees of the Queen in Council and 
levying taxes to be expended as the Queen in Council 
might direct. 

An examination of the charters of discovery granted 
by Queen Elizabeth to Sir Humphry Gilbert and Sir 
Walter Raleigh shows that it was her purpose, had colo- 
nies been established under these charters, to govern 
them by herself, advised by her Privy Council. Judg- 
ing from the system pursued by Elizabeth and her pre- 
decessors in the case of Ireland and Jersey, there would 
have been a Governor and Privy Council in each of 
the American Colonies, subordinate to and in corre- 



Jurisdiction of Courts Over States 77 

spondence with the Queen in Council. The bond of 
union between England and the Colonies would have 
been considered to arise from the common allegiance of 
all English-born people, and their descendants, to the 
person of the reigning monarch. Under this system 
the Colonies and their citizens would have been subject 
to the Queen in Council as a supreme tribunal. 

The system of government by councils which pre- 
vailed in England during Elizabeth's time was a favor- 
ite system at that time throughout Europe. The feudal 
system was on the point of giving place to the repre- 
sentative system, but during the last half of the six- 
teenth century there was a reaction towards the feudal 
system. Spain, the most successful colonizing power of 
that day, was governed by councils. Its relations with 
its colonies were in charge of a specially selected and 
distinguished body of men who formed the Council of 
the Indies, which was assisted by a subordinate Council 
of Trade. A similar system prevailed in Portugal. In 
the Empires of Venice and Genoa, then passing into 
decay, the relations with the oversea colonies and trad- 
ing-posts had been in charge of a central tribunal. 

When James VI of Scotland came to the throne of 
England as James I in 1603, after the death of Eliza- 
beth, a new situation was beginning to be formed on the 
Continent of Europe. Spain and Portugal, claiming 
the whole world outside of Europe under Papal bull, 
were declining, and the northern powers of the Conti- 
nent under the lead of Henry IV, King of France, were 
trying to arrange a European Concert to regulate 
Europe and all the rest of the world. The movement 
was ostensibly aimed against Spain and Austria, but it 
was evident that any Concert of the Continental powers 
must inevitably in the long run be turned against 
England. It became necessary for England, whose 



78 The American Philosophy of Government 

trade was already almost strangled by hostile regula- 
tions of Continental powers, to gain colonies for itself 
in America and to hold them against any possible 
Continental coalition. A systematic plan of coloniza- 
tion was therefore entered upon in which the great 
lawyers of England, among them Coke, Bacon, and 
Popham, participated. 

Just as these plans were being prepared, an event 
occurred in England which, as the Colonial documents 
and literature show, had a profound influence on the 
people of the American Colonies. This was the settle- 
ment of a dispute between England and Scotland ac- 
cording to a decision made by the judges of England. 
When King James became King of both countries, the 
question arose, what rights the citizens of the two states 
should have against each other while their peoples were 
thus united through the person of the King. Commis- 
sioners were appointed by the legislatures of the two 
states, and an agreement was reached except upon the 
question of what rights the citizens of Scotland should 
have in England, and vice versa. In 1604, the English 
House of Commons brought the negotiations to a tem- 
porary close by insisting that the rights of the Scots in 
England should be such only as they were entitled to 
according to the principles of law and established pre- 
cedents. The House of Lords insisted upon an arrange- 
ment for naturalizing in England by statute all persons 
born in Scotland after the union ; it being agreed that all 
persons born before the union were aliens, who could be 
naturalized only by the methods applicable to aliens. A 
great hearing of the question was had, which was given 
the form of a conference between the Lords and Com- 
mons of England, to which all the judges of England 
were summoned as advisers of the conference. The 
effect of the whole arrangement was to constitute the 



Jurisdiction of Courts Over States 79 

judges of England an Extraordinary Tribunal to de- 
termine judicially the dispute between England and 
Scotland. At the hearing Sir Francis Bacon acted as 
leading counsel, and prominent lawyers of the House of 
Commons argued the case from the standpoint of the 
civil law, "the law of nations and of reason," the history 
of nations, and the common law. All the cases in the 
English year books and reports arising out of England's 
connection with the principalities and duchies in France 
and the Low Countries, with Ireland, and with Jersey 
and Guernsey, were examined. The case is reported 
in the State Trials under the title of the Case of the 
Postnati. In an opinion in which the principles of law 
and the precedents were fully discussed, the judges 
arrived at the unanimous conclusion that Scots born 
after the accession of James to the throne of England 
were entitled in England to full civil rights of person 
and property, but had no political rights; and that 
Scots born before the union were aliens in England. 
Though the judges in their opinions necessarily based 
themselves on English law and precedents, the investi- 
gation of counsel and the reasoning of the judges took 
so wide a range that the principles laid down were really 
those of universal law, and the effect of the decision 
was to recognize a supreme common law governing the 
relations between England and all the countries politi- 
cally connected with her. The decision of the judges 
was accepted by the people of England and Scotland, 
and the dispute was thus judicially settled. A test 
case called Calvin's Case, involving the same questions 
as the Case of the Postnati, was brought two years later 
to the Court of King's Bench, and was heard before 
all the judges, the decision being the same. By reason 
of the nature of the points decided in the Case of the 
Postnati, and the manner of the decision, and by reason 



80 The American Philosophy of Government 

of the fact that this decision did in fact settle the diffi- 
culty between England and Scotland, the Case of the 
Postnati had the dignity of an international adjudica- 
tion and illustrated the possibility of Courts having 
jurisdiction over States. 

Incidentally, the judges in their opinions in these 
cases, stated the principles which in the past had gov- 
erned the relationship between England and the coun- 
tries subordinately connected with her; thereby in fact 
establishing the principles upon which the relationship 
between England and the American Colonies was to 
rest. The King in Council was recognized as having a 
superintending legislative power and jurisdiction over 
all countries subordinately connected with England, to 
be exercised by orders in council or by writs. The Par- 
liament was recognized as having a superintending 
legislative power over such countries above that exer- 
cised by the King in Council, this power being exercised 
by means of Acts of Parliament in which the colonies 
were specially named. A special Act relating to a 
country outside the realm of England — which was nec- 
essarily not represented in the Parliament — could be 
intelligently framed only after investigation of the facts 
and hearing of the parties concerned. In passing such 
special Acts, therefore, the Parliament, if it acted rea- 
sonably and conscientiously, necessarily acted both as 
a tribunal having jurisdiction over such countries and 
as a legislature. 

When, therefore, the English colonization of America 
began, in 1606, not only were the minds of the people 
of England habituated to the idea of government 
through councils of experts sitting as tribunals as well 
as legislatures, but they had just had an object lesson 
in international adjudication. The English colonists 
of America had moreover special cause to be familiar 



Jurisdiction of Courts Over States 81 

with the Case of the Postnati and Calvin's Case, for 
the principles laid down in them in fact formed the 
unwritten constitution governing the relations between 
England and the American Colonies. A permanent 
tribunal in England exercising jurisdiction in disputes 
between England and the Colonies, or between one 
colony and another, determining their rights against 
each other according to sound political, legal, social, 
and economic principles, was probably regarded by all 
as an appropriate means for maintaining proper rela- 
tions between them. It was of course impossible at 
that time for the Colonies to be united with England 
by representation in Parliament, and such a tribunal 
was the only practicable bond of union between them. 
Such a tribunal was not inconsistent with a system of 
local self-government in the Colonies; indeed it de- 
pended for its success upon a recognition of their self- 
governing statehood, and of their power and duty to 
execute the judgments of the tribunal in so far as they 
appealed to the reason and conscience of the people of 
the Colonies as reasonably necessary and just. 

By the Charter of 1606, James I claimed all North 
America between 34 and 45 °, — that is, all the region 
between what is now South Carolina and what is now 
Canada, — calling it "Virginia"; and divided it into two 
districts overlapping between 38 and 41 °, one of which 
was probably intended to be a northern and the other a 
southern viceroy alty, — the middle line falling very close 
to what was later on " Mason and Dixon's Line" between 
the Northern and Southern States. In each of the grand 
divisions provision was made for an English Colony with 
specified boundaries. The local government of each 
Colony was placed in charge of a local Council, called the 
"Council of the First (or Second) Colony," to be ap- 
pointed by, and to act under the instructions of the King 



82 The American Philosophy of Government 

in Council. The Charter also provided for a Council in 
England, to be ' ' Council of Virginia. ' ' The ultimate and 
supreme power over the Colonies was recognized as vested 
in the whole State and Government of England, and this 
power was to be executed, so far as the Charter shows, 
by the King in Council. The "Council of Virginia" 
was given jurisdiction, subject to final decision of the 
King in Council, to determine disputes between the 
Colonies, and advise the King concerning the general 
social and economic situation; the Charter providing 
that this Council was to have the "superior managing 
and direction only of and for all matters that may con- 
cern the government, as well of the several Colonies, as 
of and for any other part or place within the aforesaid 
precincts of four and thirty and five and forty degrees." 
The likeness between the system of government 
established by this Charter, and the Spanish system, is 
apparent. The Council of Virginia corresponded to the 
Council of the Indies and the Council of each Colony 
to the local Audiencia in each of the Spanish colonies 
which conducted the local government. The Charter 
made no provision for representative Assemblies in the 
Colonies — in this respect also conforming to the Span- 
ish system. Some basis is to be found for a belief that 
this Charter shows Spanish influence in the fact that 
England and Spain were then in close relationship 
under Treaty of 1604, and that Spanish ideas were 
prevalent at the English Court. As, however, the 
Charter was drawn by the most eminent English law- 
yers, and as the English scheme of colonization of 
America was strongly opposed by Spain, it seems more 
reasonable to believe that the Council of Virginia was 
a development of the ideas underlying the English 
Privy Council than that it was based on any foreign 
model. 



Jurisdiction of Courts Over States 83 

The Charter of 1606 proved ineffective, because it 
did not induce sufficient emigration. There was no 
precious metal to produce quick returns to the colonists. 
They could only hope for the slow return from agricul- 
ture and trade; and this necessitated the use of large 
amounts of capital and systematic operations for colo- 
nizing the country and protecting and supplying the 
colonists until they could become self-supporting. In 
1609, the "First Colony" referred to ixi the Charter of 
1606 was organized as a colonizing and trading joint- 
stock corporation called the Virginia Company, which 
was authorized to colonize and govern the region at 
present included within Virginia and the country to 
the westward. The Company was given the privilege 
of the general and local government of the country 
granted, and the monopoly of its trade. The governing 
board of the Company in England was constituted by 
the Charter the "Council of Virginia" and was subordi- 
nate to the King in Council. By an amendment in 
161 1, the adventurers were allowed to sit with the 
Councillors, and the meetings were called "Courts" of 
the Company. Four "Great and General Courts" in 
each year were required to be held "for the handling, 
ordering, and disposing of matters and affairs of greater 
weight and importance, and such as shall or may in 
any sort, concern the weal public and general good of the 
said Company and Plantation." 

This Charter was unsatisfactory. By the people of 
England it was objected to as giving to the Company 
a monopoly; the King regarded it as too democratic 
and republican, and as likely to lead to too radical 
ideas in the Colonies; the nobility found fault with it 
because it allowed merchants to sit in one of the King's 
councils. 

The admission of merchants to membership in this 



84 The American Philosophy of Government 

council was, it would seem, due to the economic neces- 
sities of the situation. The opening of the sea-route to 
India and America, the closing of the Mediterranean 
to the Oriental trade by the Mohammedan invasion of 
what is now Turkey, the consequent ruin of Venice, 
and the decline of Spain and Portugal through extrava- 
gance and bad government, had made the English 
Channel the Mediterranean of the world, and London, 
as the most secure port on the Channel, was becoming 
the metropolis. England required a permanent eco- 
nomic connection with America, in order that raw 
material might be secured and an increased market for 
English manufacturers might be provided. The tri- 
bunal in England having jurisdiction over the relations 
of the American Colonies, in order to be efficient, had 
to be so organized as to be able to cope with economic 
as well as with social and political questions. The sys- 
tem was perfected half a century later, by the institution 
of a Council of Trade, subordinate to the King in 
Council, having charge of these economic relations. 

Under the Charter of 1609, the local government of 
Virginia took on a democratic and republican aspect. 
To the Governor and Council appointed by the King 
in Council was added in 1621, by consent of the King 
in Council, a representative "House of Burgesses," all 
together constituting the General Assembly of Virginia. 
In the Ordinance of the Company establishing this 
system occurred the remarkable provision that no orders 
of the General Courts of the Company should bind the 
Colony unless ratified by the General Assembly of 
Virginia, — a provision which left to the General Courts 
of the Company what was essentially a power of adju- 
dication, and gave Virginia the power of executing the 
judgments of the Courts of the Company according as 
these judgments were approved by the public sentiment 



Jurisdiction of Courts Over States 85 

of the people of Virginia. This ordinance, representing 
as it did the maximum of self-government which was 
ever granted by England to any of the Colonies, was 
regarded by all the Colonies as a fundamental constitu- 
tion determining the relationship not only between 
England and Virginia, but between England and all the 
Colonies. 

In 1620, an experiment was made of another system, 
resembling somewhat that of the Virginia Company. 
A colonizing and trading corporation of forty members 
with power of self -perpetuation by the name of "Coun- 
cil for New England," was chartered by James I, with 
power of government and trade monopoly throughout 
North America from 40 to 48 , — that is, approximately 
from what was afterwards " Mason and Dixon's Line," 
to the mouth of the St. Lawrence. The meetings of the 
council were described in the Charter as " Courts." The 
Company, which was at the same time "Council" and 
a "Court," thus constituted a tribunal in England 
having jurisdiction, subject to the King in Council, of 
the colonies to be formed in this great region. As a 
corporation it was subject to have its charter forfeited 
for cause by quo warranto proceedings ; and its monopoly 
made it vulnerable. The opposition of Parliament to 
monopolies was so great that the corporation did little 
more than make grants of land. 

Charles I, upon coming to the throne in 1625, 
abolished the Virginia Company, and took Virginia un- 
der the direct government of himself advised by his 
Privy Council, without any subordinate council. In 
1628 he granted a Charter to the Company of Massa- 
chusetts Bay, empowering it to colonize the region sur- 
rounding what is now the city of Boston, with full 
powers of government and without express reservation 
of control by the King in Council or by Parliament. 



86 The American Philosophy of Government 

The meetings of the Company were described in the 
Charter as "Courts," and four "Great and General 
Courts" of the Company were to be held in each year. 
It was not specified whether the Company should be 
located in England or in Massachusetts Bay. 

This Charter was based upon principles of govern- 
ment inconsistent with the Latin theory of government 
held by Charles I, and his Privy Council, according to 
which the binding force of governmental acts was de- 
rived from the King's command, and so evidently made 
the public judgment supreme within the Colony, that 
when the Company removed to Massachusetts Bay, it 
became specially obnoxious to the King in Council, and 
the charge was made that the Charter was obtained 
1 'surreptitiously. ' ' 

In 1635, the Council for New England surrendered 
its Charter and the King created a special commission 
to regulate all the English Colonies in America and 
elsewhere, composed of the highest clerical and lay 
officials of the realm — William Laud, Archbishop of 
Canterbury, being the President. This commission was 
invested with full powers, and it seems to have been 
responsible only to the King in person. It was expressly 
given power to determine all disputes between the 
Colonies. The Letters Patent read, in this respect : 



Farther, be it known that we constitute you, or any five 
or more of you, our commissioners, to hear and determine, 
according to your sound discretions, all complaints what- 
soever, whether against the Colonies themselves, or their 
Presidents or Governors, either at the instance of the party 
aggrieved, or upon information concerning injuries done, 
. . . and to summon the parties before you, and they 
having been heard, ... by themselves or by their attor- 
neys, to extend to them full and complete justice. 



Jurisdiction of Courts Over States 87 

This tribunal was also authorized to hear and deter- 
mine controversies between the Colonies and England, 
their powers extending to the revocation of ' 'charters 
surreptitiously or unduly obtained or prerogatives 
granted on terms prejudicial to the rights of the Crown 
or of foreign princes"; the commission being required 
to proceed in such cases "according to the law and 
custom of our realm of England." It was this tribunal 
which directed that a quo warranto suit be brought 
against the Massachusetts Bay Colony to forfeit its 
Charter on the ground that the Charter was obtained 
surreptitiously and unduly and that it was not intended 
to authorize the whole government of the Colony to 
be removed to America. 

The arbitrary methods of Archbishop Laud led the 
Colonies to distrust the commission as formed, but 
they recognized the necessity of a reasonable judicial 
control by the King in Council. In 1638, the General 
Court of Massachusetts Bay, in its answer to the de- 
mand of the commission to surrender up the Charter 
for cancellation, declared that Massachusetts Bay was 
"ready to yield all due obedience to our Sovereign 
Lord the King's Majesty, and to your Lordships under 
him." The expression "due obedience" or "due sub- 
jection" was often used in the Colonial documents as 
describing the relation of the Colonies to England, to 
signify that they regarded themselves as subject only 
to the power of England duly exercised, — that is, exer- 
cised to the extent needful for the common good. They 
regarded themselves as free states or commonwealths, 
and based their subjection to the reasonable jurisdiction 
of England partly on their consent, partly on the economic 
necessities of the case, and partly on the moral compul- 
sion growing out of their special relationship toEngland 
and their general relationship with the rest of the world. 



88 The American Philosophy of Government 

The position taken by the General Court of the 
Massachusetts Bay Colony was in harmony with the 
prevailing sentiment in England. In 1640, the Parlia- 
ment by an act declared and "regulated" the powers 
of the King in Council and defined its jurisdiction as a 
tribunal. This act provided: 

That neither his Majesty, nor his Privy Council, have or 
ought to have any jurisdiction, power or authority, by 
English bill, petition, articles, libel, or other arbitrary way, 
to examine or draw into question, determine or dispose of 
the lands, tenements, hereditaments, goods or chattels of 
any of the subjects of this kingdom; but that the same 
ought to be tried and determined in the ordinary courts of 
justice and by the ordinary course of law. 

The effect of this statute was to differentiate the King 
in Council from the ordinary courts of justice of the 
realm of England and to make the King in Council an 
Extraordinary Court for the judicial settlement of dis- 
putes arising outside of the realm of England but within 
the English empire. In the exercise of this extraordi- 
nary jurisdiction it acted according to the equity of the 
laws of England, inasmuch as all the Colonial charters 
provided that the Colonial law should be not incon- 
sistent with the law of England. 

In 1638, the people of the town of Windsor, Hartford, 
and Wethersfield, in what is now Connecticut, without 
any charter from England, "associated and conjoined" 
themselves "as one public state or commonwealth." 
In their articles of "combination and confederation," 
they provided for two "General Assemblies or Courts" 
to be held annually and to be composed of deputies of 
the towns. The whole State was spoken of in the ar- 
ticles as a "Jurisdiction." A Governor and six Assist- 
ants were to be elected and were to have power "to 



Jurisdiction of Courts Over States 89 

administer justice according to the laws here estab- 
lished, and for want thereof according to the rule of the 
word of God." It was provided that the General Court 
should be "for the making of laws and any other pub- 
lic occasion which concerns the good of the Common- 
wealth," — a power sufficiently broad to enable the 
General Court to adjust disputes between the constitu- 
ent towns and to make treaties with their neighbor 
" Commonwealths" or "Jurisdictions." 

In the Massachusetts Bay "Body of Statutes" of 
1641, the "Commonwealth" of Massachusetts Bay was 
spoken of as a "Jurisdiction." 

In 1643, when England was distracted by the civil 
war, the Colonies of Massachusetts Bay, New Ply- 
mouth, Connecticut, and New Haven found themselves 
in a position where they were obliged to defend them- 
selves from external attack and where they were at the 
same time in danger of war among themselves unless 
they could find a peaceful way of settling their disputes. 
They accordingly entered into a Confederation, by the 
name of "The United Colonies of New England." One 
of the Articles of Confederation provided: 

If any of the Confederates shall hereafter break any of 
these present articles, or be any other way injurious to 
any of the other Jurisdictions, such breach of agreement, 
or injury, shall be duly considered and ordered by the 
Commissioners for the other Jurisdictions, that both peace 
and this present Confederation may be entirely preserved 
without violation. 

Before tribunals organized according to this pro- 
vision, several disputes between the Colonies regarding 
boundaries were heard and determined. The case of 
the greatest consequence which came before these tri- 
bunals, however, was that between Massachusetts and 



90 The American Philosophy of Government 

Connecticut involving the right of Connecticut to im- 
pose duties on the navigation of the Connecticut River, 
in consideration of the maintenance by Connecticut of 
a fort at the mouth of the river. The case was decided 
in favor of Connecticut and was twice afterwards 
argued on rehearings asked by Massachusetts. Retalia- 
tion by Massachusetts finally resulted in a free trade 
system among the Confederates. 

On November 3, 1643, three months after the New 
England Confederation was formed, the Lords and 
Commons, who then constituted the legislature of 
England under a provisional government practically 
republican in form, passed an ordinance establishing a 
new commission with full jurisdiction over all the 
English colonies. The Earl of Warwick was named as 
president of the commission, and Sir Henry Vane, John 
Pym, and Oliver Cromwell were among the members. 
One of its first acts was to grant a charter to Providence 
Plantations, which had been excluded from the Con- 
federation on account of the strong individualistic 
doctrine of the settlers there. In this charter the com- 
mission asserted its jurisdiction to determine disputes 
between the Colonies by a clause which read: 

Always reserving to the said Earl and Commissioners, and 
their successors, power and authority to dispose the general 
government of that, as it stands in relation to the rest of 
the Plantations in America, as they shall conceive, from 
time to time, most conducive to the general good of the 
Plantations, the honor of his Majesty, and the service of 
the State. 

This commission, and its successor, the Committee 
of the Council of State for the Plantations, established 
when the English Commonwealth was instituted in 
1649, permitted the United Colonies of New England 



Jurisdiction of Courts Over States 91 

to operate under their Articles of Confederation in 
subordination to the supreme power of the Common- 
wealth; and the Confederation continued in full vigor 
until the restoration of Charles II in 1660. 

Under Cromwell, provision was made for determining 
the economic as well as the political relations of the 
colonies by the institution of a Council of Trade, which 
was subordinate to the Committee of the Council of 
State for the Plantations. The Council of Trade acted 
as a tribunal of first instance or a master in chancery, 
deciding routine matters and reserving the more im- 
portant questions for the decision of the Committee of 
the Council of State for the Plantations and later of 
the Lord Protector in Council. From the beginning the 
Colonies had had the practice of sending commis- 
sioners to England or employing agents there to repre- 
sent their interests in special emergencies before the 
King in Council. Massachusetts Bay, in 1637, had 
sent agents to represent it before the Laud Commission. 
This now began to become a settled custom, but it was 
fifty years after this time before the system came into 
full operation. 

The passage of the Navigation Act in 1651, by the 
Parliament of the Commonwealth, brought up in acute 
form the question how the relations between England 
and the Colonies, and between the Colonies individ- 
ually, ought to be determined. The object of this Act 
was to restrict the trade of the Colonies to the English 
market, and to place the whole carrying trade in the 
hands of English shipowners, thus giving England the 
monopoly of the trade of the Colonies. This action was 
acquiesced in by some of the Colonies, as a reasonable 
regulation of their foreign and intercolonial trade 
necessitated by the circumstances. Others regarded it 
as evidencing the adoption by England of a theory of 



92 The American Philosophy of Government 

absolute power over the Colonies. It appeared to them 
to show that England had accepted the " Colonial Pact " 
theory invented by Richelieu a few years before, by 
which the claim of France to absolute power over her 
colonies had been concealed under the pretext that 
there existed a Fundamental Compact between France 
and her colonies by the terms of which the colonies 
were assumed to have granted to France a monopoly 
of their trade in consideration of her assumed promise 
to protect them. On this theory, there was no occasion 
for a tribunal in England having jurisdiction over the 
Colonies. They had no rights against England, and 
were bound implicitly to obey the edicts of England. 
All the Colonies moreover objected to Acts of Parlia- 
ment which purported to affect them, because it was 
evident that Parliament was not organized as a tribunal 
but as a representative of territorial districts in England. 
Upon the passage of the Navigation Act in 1651, Vir- 
ginia revolted from the Commonwealth, claiming that 
the Act was a violation of the principle that the subjec- 
tion of the American Colonies was to a proper tribunal 
in England, and that the Colonies were subject to no 
legislatures except their own. Commissioners were sent 
by the Commonwealth Parliament to Virginia, who, 
under instructions, succeeded in settling the contro- 
versy by agreeing to Articles of Capitulation in which 
it was declared that Virginia (and, by necessary im- 
plication, all the other Colonies) owed only "due 
obedience and subjection to the Commonwealth of 
England," and that the "submission and subscription" 
of Virginia was a "voluntary act" on her part. 

This great constitutional settlement between the 
Commonwealth of England and the American Colonies 
made the validity of the Navigation Act and of all 
other governmental acts of England relating to the 



Jurisdiction of Courts Over States 93 

Colonies depend upon whether or not they were reason- 
able and just under the circumstances, the Colonies 
having the right, at least in extreme cases, to determine 
the question of reasonableness and justness as well as 
England. In case of deadlock, there was no solution 
except through agreement in conference, or through 
arbitration, or through judicial decision by the King in 
Council, or through war. The relations between Eng- 
land and the Colonies and between the Colonies indi- 
vidually, under this settlement, bore a close resemblance 
to those of states which are subject to the principles of 
international law. 

With the restoration of Charles II in 1660 and the 
cessation of the domestic troubles of England, a syste- 
matic reorganization of the American Colonies was 
begun. As the sytem was developed during the century 
succeeding his accession, three general objects were 
pursued — the establishing of direct and close communi- 
cation between each colony and England ; the directing 
of the trade of each towards England as the common 
market; and the maintaining of a permanent political 
connection between all parts of the empire. In pursu- 
ance of the first object the Dutch and Swedes were 
dislodged from the regions about the Hudson and Dela- 
ware Rivers, and the whole sea coast from what is now 
the southern boundary of Georgia to what is now the 
northeastern boundary of Maine was divided so that 
ultimately there were formed twelve Colonies, each 
having a good harbor from which ships could sail direct 
to England. In pursuance of the second object, the 
Navigation Act was continued and more stringent pro- 
visions were made for carrying it into effect, it being 
the general understanding, at least in the Colonies, 
that this Act was an exceptional measure necessitated 
by the circumstances and dependent for its validity 



94 The American Philosophy of Government 

upon its reasonableness and necessity and upon their 
consent or acquiescence. In pursuance of the third 
object, the general jurisdiction of the relations of the 
Colonies was placed in charge of the King advised by a 
standing committee of the Privy Council known as the 
Committee of the Privy Council for Plantation Affairs, 
which was itself assisted by a subordinate judicial and 
administrative body of experts known as the Board of 
Commissioners for Trade and Plantations. This sub- 
ordinate tribunal was appointed by the King in Council 
and was specially concerned with economic questions, 
though it appears to have had a general jurisdiction. 
Important matters, particularly those involving diplo- 
matic and political action with reference to the Colonies, 
were referred by this subordinate council to the Com- 
mittee of the Privy Council for Plantation Affairs. 

During the last years of the reign of Charles II and 
during the reign of James II this system of managing 
the relations with the Colonies was rendered unpopular 
in America by the arbitrary methods pursued, and par- 
ticularly by the attempts of these monarchs to cen- 
tralize the system by the abolition of the corporate 
and proprietary charters of the Colonies and by the 
substitution for them of charters converting each Col- 
ony into a royal province, ruled by a Governor and 
Council appointed by the King. It seems probable 
that it was intended by them to form the Colonies into 
two viceroyalties — a northern and a southern — com- 
posed of provinces; the dividing line being that of 40 . 
When this plan was abandoned, various schemes for 
uniting the Colonies under a Governor General and a 
General Council appointed by the King in Council 
were agitated. William Penn, who in 1693 had pub- 
lished a plan for uniting Europe under a general gov- 
ernment, proposed in 1697 to the English Government 



Jurisdiction of Courts Over States 95 

a plan for uniting the American Continental Colonies 
under a general government, subject to the supremacy 
of England. All plans for a union, however, failed, and 
until shortly before the American Revolution, the King 
in Council was the bond of union between England and 
the Colonies and between each Colony and all the others. 

In 1700, the Commissioners for Trade and Planta- 
tions recommended that the practice of having agents 
in London be adopted by all the Colonies, and most of 
them thereafter adopted the practice. The Colony 
agents occupied a relationship to Parliament somewhat 
similar to that of a delegate without power to speak or 
vote, or even to sit in the body, yet recognized by com- 
mittees and in some cases called to the bar of the House 
of Commons to present the views of the Colonies. As 
respects the King in Council, their relationship was 
semi-diplomatic. As respects the Commissioners for 
Trade and Plantations, their position was essentially 
that of attorneys in England for the Colonies. Thus 
the whole governmental establishment of Great Britain 
stood in the relation of a supreme tribunal for the Colo- 
nies rather than a supreme legislature. Even Acts of 
Parliament were regarded as deriving their binding 
force from the acquiescence of the Colonies in them as 
necessary and just regulations for the common defense 
and general welfare. 

The merger of England and Scotland in 1707, by 
which was formed the United Kingdom of Great Brit- 
ain, brought various new ideas and influences to bear 
upon the relations between the Colonies and the mother 
country; but under the British empire the system 
whereby the King in Council acted as the bond of 
union was not essentially changed. During the decade 
between 1730 and 1740, the system probably obtained 
its highest degree of perfection and its greatest success. 



96 The American Philosophy of Government 

From about the year 1700 until shortly before the 
Revolution, the King in Council was both the su- 
preme political tribunal of the empire and the supreme 
court of appeals of the empire. Besides the political 
committee already mentioned — the Committee of the 
Privy Council for Plantation Affairs, — there existed a 
judicial committee known as the Committee for Ap- 
peals. This latter committee had jurisdiction of appeals 
from the supreme courts of the Colonies. As appears 
from the statement of Lord Mansfield in the great case 
of Campbell v. Hall, decided in the King's Bench in 
1774, it was the law that the King in Council could do 
nothing as respects the Colonies which was ' 'contrary 
to fundamental principles" ; from which it appears that 
it was the duty of the King in Council, in exercising 
jurisdiction over the Colonies, to recognize and regard, 
both in its political and its judicial action, the funda- 
mental rights of the individual to life, liberty, and 
property. Disputes between the Colonies, or in which 
a Colony or Great Britain was involved, were within 
the jurisdiction of the King advised by the Committee 
of the Privy Council for Plantation Affairs, who ar- 
ranged the method of trial in each case. 

Several cases involving the boundaries between Colo- 
nies were settled between 1700 and 1770 by the political 
committee of the King in Council. One of these was 
that which arose in 1736 between Maryland and Penn- 
sylvania in regard to a part of the region which is now 
Delaware. After much trouble between the border 
populations and many ineffectual attempts of the local 
governments to adjust the matter, the dispute came to 
the King in Council in 1750. As it appeared that the 
controversy arose out of an agreement between the 
Lords Proprietors, who were within the jurisdiction of 
the English courts by reason of their residence in Eng- 



Jurisdiction of Courts Over States 97 

land, the King in Council acquiesced in a plan whereby 
a suit in chancery for specific performance of the agree- 
ment and for the settlement of boundaries and the 
quieting of title was to be brought by the Proprietor of 
Pennsylvania against the Proprietor of Maryland in 
the English court of chancery, the right to jurisdiction 
over the region in question to be settled by order in 
council according to the decision. The suit, by the 
title of Penn v. Lord Baltimore, was accordingly 
brought, and was heard and adjudicated by Lord 
Chancellor Hardwicke. Upon report of the decision 
of the court of chancery to the King in Council, an 
order in council was made in conformity with the de- 
cision, establishing the right of Pennsylvania to juris- 
diction over the region in dispute. 

In granting a motion of the defendant to make the 
Attorney General a party, Lord Hardwicke said 
(Ridgeway, 332): 

This is a question between feudatory Lords, Proprietors 
of Provinces, and concerning not only their private interest, 
but the rights of government and the rights of private 
persons. . . . The disputes of private persons in the 
Provinces are determined in the courts of the Province, on 
which a writ of error by way of appeal lies before the King 
in Council. Therefore questions between Proprietary 
Lords, in analogy to the ancient law of the Marches, must 
be determined before the King in Council. . . . 

If . . . Proprietary Lords are to alter the bounds of 
their Provinces without the privity and consent of the 
Crown, by whom alone such powers are vested, directed 
and disposed, consider the inconveniences that must follow; 
this is no less than transferring lands into different jurisdic- 
tions, legislations, etc., you subject the people to different 
government, different assemblies, laws, courts, taxes, etc., 
to which they never assented by their delegates. 



98 The American Philosophy of Government 

Delivering the opinion on final hearing (i Vesey Sr., 
444), Lord Hardwicke said: 

This cause [is] for the determination of the right and 
boundaries of two great Provincial Governments and three 
Counties; of a nature worthy the judicature of a Roman 
Senate rather than of a single Judge; and my consolation 
is, that if I should err in my judgment, there is a judicature 
equal in dignity to a Roman Senate that will correct it. 

It is certain that the original jurisdiction in cases of this 
kind relating to boundaries between provinces, the dominion 
and proprietary government, is in the King and Council; 
and it is rightly compared to the cases of the ancient Com- 
motes and Lordships Marches in Wales; in which if a dis- 
pute is between private parties it must be tried in the 
Commotes or Lordships, but in those disputes where neither 
had jurisdiction over the other, it must be tried by the 
King and Council; and the King is to judge, though he 
might be a party; this question often arising between the 
Crown and one Lord Proprietor of a Province in America; 
so in the case of the Marches it must be determined in the 
King's court, who is never considered as partial in these 
cases; it being the judgment of his judges in [the King's 
Bench] and chancery. So where before the King in Council 
the King is to judge, and is no more to be presumed partial 
in one case than in another. 

Another case of disputed boundaries which came be- 
fore the King in Council for settlement was that of 
New Hampshire against Massachusetts. There being 
in this case no Lords Proprietors, of whose persons the 
English courts might have jurisdiction, and no agree- 
ment, — the case arising under the Charters of the Colo- 
nies, — the King in Council ordered a reference of the 
case to a commission in America composed of twenty 
persons, who were to be the five eldest councillors of 



Jurisdiction of Courts Over States 99 

the Colonies of New York, New Jersey, Nova Scotia, 
and Rhode Island, any five being a quorum, and their 
decision being reviewable by the King in Council. The 
Massachusetts Assembly wished the reference to be to 
"wise disinterested persons" to be chosen equally by 
or in behalf of the parties, those in behalf of Massa- 
chusetts "to be chosen by the Assembly of that Prov- 
ince out of the neighboring governments"; but this 
request was denied and the commissioners were named 
by order in council. 

About the year 1 755, the system began to break down. 
In part this was no doubt due to the recrudescence of 
autocratic and absolutist ideas throughout the Euro- 
pean world. In part it was probably also due to the 
necessities of international trade. The close and con- 
tinuous contact of British traders and government 
officials with the peoples of the Orient and the tropics 
who understood no governmental power which was not 
absolute, had led the British government to claim and 
assert absolute power over these peoples, and it doubt- 
less appeared to British statesmen that to recognize 
the American Colonies as subject only to a jurisdiction 
on the part of Great Britain was inconsistent with the 
exercise of the absolute power which it seemed necessary 
to assert in dealing with Oriental and tropical peoples. 
However this may be, Great Britain about the year 
x 755 began to advance the claim that it had absolute 
power throughout the empire, with the right to mo- 
nopolize the trade of all the subordinate parts and to 
tax them for the general defense and welfare ; the excuse 
for the claim of absolute power being the assumed duty 
of Great Britain to protect all parts of the empire. 
This system, called in France, as has been said, the 
system of le Pacte Colonial, was in England called "the 
Mercantile System." 



ioo The American Philosophy of Government 

The war between Great Britain and France for the 
ten years from 1753 to W^* which was largely fought 
on American soil and in which British and American 
soldiers served side by side, delayed and concealed the 
carrying out of the new policy. The British and Ameri- 
cans fraternized and good feeling reigned. The acqui- 
sition of Canada by Great Britain as the result of the 
war, however, brought matters to a head. British 
America, instead of consisting of a row of seaboard 
colonies inhabited by British settlers, with direct com- 
munication from each by sea to Great Britain, became 
a great region into which, through the St. Lawrence 
and the Mississippi, French and Spanish influences had 
penetrated, and containing a great body of uncivilized 
aboriginal inhabitants. At one stroke, the old system 
of government was made impossible, and a new situa- 
tion created which, as it seemed to British statesmen 
at least, could be met only by the exercise of absolute 
power. 

Immediately a system of absolutism was put in 
force. By edict of the King in Council in 1763, the 
western bounds of the old Colonies were limited to the 
Allegheny Mountains, and the whole of Canada (which 
included the Northwest Territory) placed under the 
government of the Crown. In 1764, the Colonies were 
taxed by Act of Parliament for the general purposes of 
the empire, both internally by a Stamp Act and ex- 
ternally by tariff duties on goods imported into the 
Colonies. When the Stamp Act was repealed, Great 
Britain by a Declaratory Act of Parliament asserted 
its absolute power in the empire. By this Act, it was 
declared that the Parliament of Great Britain "had, 
hath, and of right ought to have full power and au- 
thority to make laws and statutes of sufficient force and 
validity to bind the colonies and people of America, 



Jurisdiction of Courts Over States 101 

subjects of the Crown of Great Britain, in all cases 
whatsoever." 

The Americans stood for the old system. They were 
willing to recognize Great Britain as having jurisdiction 
over the Colonies as free states, reserving their right 
of judgment, at least in extreme cases, for the protec- 
tion of their honor and dignity-and for their self-preser- 
vation. They acknowledged the supremacy of Great 
Britain in reasonably and justly regulating the common 
affairs of the states of the empire, particularly in regu- 
lating the intercolonial commerce and the foreign com- 
merce of the empire and of all its constituent states. 
They considered that this jurisdiction ought to be exer- 
cised by a properly constituted tribunal in Great Britain 
of which the King should be the head, and they were 
even willing to conform to acts of Parliament passed in 
the reasonable exercise of this jurisdiction; but they 
would not accept even a theoretical claim of absolute 
power over them, however benevolent might be the 
despotism. 

The issue raised by the Stamp Act, the Declaratory 
Act, and the Tea Act, was whether Great Britain had 
legally unlimited power over the colonies as their su- 
preme absolute legislature or whether it had a legally 
limited power — that is, a jurisdiction over them — as 
their supreme tribunal and supreme executive legisla- 
ture. The Americans at first tried to find a legal limita- 
tion of the powers of Great Britain in the Colonial 
Charters and in the British Constitution, but failed to 
make out a complete case. The charters were acts of 
the British Crown and recognized the power of Parlia- 
ment without mentioning conditions or limitations, 
and the only doctrine of the British Constitution which 
could be applied was that which asserted the injustice 
of taxation without representation — a doctrine which 



102 The American Philosophy of Government 

had in fact no application, because the Americans re- 
fused to be represented in a Parliament three thousand 
miles away and the British refused to allow such a 
representation. 

Burke declared that the British empire of that day 
could not be constituted on the basis that Great Britain 
was essentially the supreme tribunal of the empire. 
No peace in the British empire was possible, he asserted, 
in his Speech on Conciliation, which was to "depend 
upon the juridical determination of perplexing ques- 
tions, or the precise marking of the shadowy boundaries 
of a complex government." Great Britain, or Great 
Britain and the American Colonies integrated in a 
common representative Parliament, he asserted in his 
Speech on American Taxation, must of necessity exer- 
cise absolute power in the empire. 

"The Parliament of Great Britain," he said, "sits at the 
head of her extensive empire in two capacities : One as the 
local legislature of this island, providing for all things at home 
immediately and by no other instrument than the executive 
power. The other, and I think her nobler capacity, is what 
I call her imperial character, in which, as from the throne of 
Heaven, she superintends all the several inferior legislatures, 
and guides and controls them all without annihilating any. 
... It is necessary to coerce the negligent, to restrain 
the violent, and to aid the weak and deficient, by the over- 
ruling plenitude of her power. She is never to intrude into 
the place of others, whilst they are equal to the common 
duties of their institution. But in order to enable Parlia- 
ment to answer all these duties of provident, and beneficent 
superintendence, her powers must be boundless. Such, sir, 
is my idea of the Constitution of the British empire as 
distinguished from the Constitution of Britain. 

Burke's Speech on American Taxation closed the 
issue between Great Britain and America. From that 



Jurisdiction of Courts Over States 103 

moment the Continental Congress realized that they 
were called upon to decide a single momentous ques- 
tion — for Burke's plan of integrating Great Britain and 
the Colonies in a common representative Parliament 
was recognized as wholly impracticable — which was, 
whether the American Colonies should remain a part 
of the British empire on the understanding that Great 
Britain's power in the empire should thereafter be a 
power to command instead of a power to lead the Colo- 
nies in judgment, or whether they should declare them- 
selves independent states and organize a political union 
independent of Great Britain and the British empire, 
in which their political ideas should be applied. If 
they took the latter course, it was necessary to state 
reasons which would appeal to the civilized world why 
Great Britain sjiould not exercise absolute power in 
the empire, for the doctrine of Great Britain was the 
accepted doctrine of Europe. It was useless for such 
a purpose to talk of rights under the Colonial charters 
or under the British Constitution. It was necessary 
for them to base themselves on universal and funda- 
mental principles and to commit the American States 
forever to the principles announced. 

The Continental Congress was equal to the emer- 
gency. By the Declaration of Independence, the Ameri- 
can Colonies, as free, independent, and united states, 
denied the claim of Great Britain to exercise absolute 
power in the British empire by asserting as a universal 
doctrine that supreme power in civilized society is 
limited by "the laws of nature and of nature's God," 
and that the function of all governments is to exercise 
jurisdiction under this law for the purpose of ' 'securing" 
to each individual those ' 'unalienable rights" with 
which all men are endowed by their Creator for their 
self -protection and self-preservation — called in the Dec- 



104 The American Philosophy of Government 

laration the rights of "life, liberty, and the pursuit of 
happiness" — and to which all are equally entitled by 
reason of the creation of all men by the common Crea- 
tor. The binding force of all acts of government was 
held to arise from the exercise of this jurisdiction by 
the government and from the acquiescence of the gov- 
erned, as beings endowed with reason and conscience, 
in the necessary and just judgments of the government, 
made for the purpose of securing the fundamental 
rights of the individual. 

The Declaration of Independence was also a Decla- 
ration of Union. By laying down these principles of 
government, it had the negative effect of eliminating 
Great Britain as the supreme government of the Colo- 
nies; by asserting the union of the American States to 
support these principles, it had the affirmative effect 
to commit the individual States and the United States 
to the principles of government which it declared. 

Accepting the principle that the supreme power of 
government is the power to judge, it follows from the 
fact that each state must necessarily have relations 
with its own citizens and with persons and states exter- 
nal to itself, that if a state assumes to finally determine 
these relations, it acts as a judge in its own cause. By 
the Declaration of Independence, the American Union 
acted as a judge in its own cause in declaring the politi- 
cal connection between Great Britain and the Colonies 
to have been dissolved by the acts of Great Britain. 
The Americans based their judgment on the ground 
that the action of Great Britain was in violation of the 
fundamental rights of the individual. Recognizing, 
however, the danger to the peace of the world from 
states acting as judges in their own causes, they de- 
clared, in the Declaration, that whenever states so act, 
"a decent respect to the opinions of mankind requires 



Jurisdiction of Courts Over States 105 

that they should declare the causes which impel them." 
Before the Revolution, the American Colonies, 
though they regarded themselves as free states or com- 
monwealths, were willing to have the disputes between 
themselves and with the mother country settled by 
the King in Council, though that was a tribunal of the 
mother country and was open to the objection that it 
was a judge in its own case. Because that tribunal 
was composed of men trained in political, social, 
and economic judgment and was headed by the King, 
who was by his office bound to be impartial, they 
accepted and executed its adjudications. 
Burke, in his Speech on Conciliation, said : 

We are, indeed, in all disputes with the Colonies, by the 
necessity of things, the judge. But I confess that the 
character of judge in my own cause is a thing that frightens 
me. Instead of filling me with pride, I am exceedingly 
humbled by it. I cannot proceed with a stern, assured, 
judicial confidence, until I find myself in something more 
like a judicial character. I must have these hesitations as 
long as I am compelled to recollect that, in my little read- 
ing upon such contests as these, the sense of mankind has 
at least as often decided against the superior as the subordi- 
nate power. 

The humility which Burke regarded as necessary in 
one who is called upon to be a judge in his own cause 
would seem to be as likely to create a bias in him 
favorable to his adversary as pride would create in 
favor of himself. The only reasonable means by which 
bias can be avoided by individuals, peoples or states, 
whether the judgment be required to be given in one's 
own cause or in the cause of others, would seem to be 
training and education in judgment, and an apprecia- 
tion of the truth which Burke stated, that every judg- 



106 The American Philosophy of Government 

ment will ultimately be reviewed by "the sense of 
mankind," which will "as often decide against the 
superior as the subordinate power." 

Upon the promulgation of the Declaration of Inde- 
pendence the Congress regarded itself as the successor 
of the King in Council. Until the Articles of Confed- 
eration were adopted, it exercised the powers which had 
been exercised by the King in Council over the Colonies 
previous to the Declaration. By the Articles of Con- 
federation, these powers were reduced to writing and 
given the sanction of a mutual agreement of the States. 
As the King in Council had been recognized as "the 
last resort, on appeal," in disputes between the Colo- 
nies, the Articles of Confederation made the Congress 
a tribunal of the same kind, for the same purpose, and 
authorized it to act, as the King in Council had done, 
by means of a tribunal instituted in each case under 
its auspices. 

In the Constitution, the people of the United States 
and the States of the Union divided between the Con- 
gress, the President, and the Supreme Court the powers 
granted by the Articles of Confederation to the Congress 
of the Confederation, and, in addition, granted to the 
Congress the power to legislate in execution of the 
powers granted to it. They also granted to Congress 
the power to regulate by legislation the interstate and 
foreign commerce of the United States. To the Su- 
preme Court naturally fell the function of determining 
disputes between the States of the Union, and the 
remarkable provision was added that foreign States 
might avail themselves of the jurisdiction of the Su- 
preme Court if they had disputes with States of the 
Union. This provision was perhaps suggested by the 
fact that the American Colonies, though holding them- 
selves to be free states in some respects foreign to Great 



Jurisdiction of Courts Over States 107 

Britain, had appeared before the King in Council as 
plaintiffs and defendants and had found it an impartial 
tribunal, though it was a national tribunal of Great 
Britain. The Constitution preserved the dignity of 
the United States and of the States by recognizing 
their rights to act as judges in their own causes, if they 
saw proper, as respects claims of individuals against 
them. Inasmuch as the Supreme Court was granted 
only the ''judicial power" of the United States, its 
jurisdiction was, it would seem, limited to the decision 
of cases which are of such a nature as to be capable 
of judicial settlement. Opportunity was provided for 
settling disputes between States by conference or arbi- 
tration by the provision of the Constitution which 
recognized the right of the States to enter into treaties 
or contracts with each other by consent of the Congress ; 
and if there be disputes between States of the Union 
which are not capable of judicial settlement, the States 
involved may, it would seem, establish in each case of 
dispute, by consent of Congress, a political tribunal for 
the settlement of the dispute. 

It will have been noticed, in the course of this inves- 
tigation of the process of the development of the 
American doctrine of jurisdiction of courts over States 
that the fundamental political belief of the people of 
the American colonies and of the United States has 
always been that there exists a supreme universal law 
governing the actions of States, which secures to each 
individual his right of self-protection and self-preserva- 
tion, and that the actions of states, nations, and empires, 
are void so far as they are inconsistent with the ' 'secur- 
ing" of these "unalienable rights." It may well be 
questioned whether it is not through this conception of 
a universal supreme law that there exists among the 
American people the conception of a constitutional law 



108 The American Philosophy of Government 

which is supreme over States, and which is formed by- 
agreement of the people and States concerned to live 
in indissoluble union. If this constitutional law has its 
sole basis in agreement, there may be a question as to 
its supremacy and as to the indissolubility of the Union. 
An agreement which is supreme over those who agree 
to it, and which is indissoluble, is a self-contradiction. 
Indissolubility of an agreement, and its supremacy 
over those who, agree to it, must depend upon some 
other fact than the agreement of the parties. 

The theory that the supremacy of the Constitution 
of the United States arises from the agreement of the 
people and States of the United States was invoked in 
the Civil War as a reason for dividing the Union into 
two unions when the people of the two sections differed 
in their opinions concerning the nature of the Consti- 
tution which they desired. The Union was upheld by 
those who believed in the existence of this supreme 
universal law referred to in the Declaration of Inde- 
pendence which secures "the unalienable rights" of all 
men to "life, liberty, and the pursuit of happiness." 
After the war, the Union was by the fourteenth amend- 
ment again expressly committed to the maintenance of 
this law; which thus became the real bond of union 
between the people and States of the Union. By that 
amendment and the fifth amendment, the Supreme 
Court, in all cases brought before it, whether by or 
against States or persons, was authorized to hold in- 
valid any act of any legislative body, of any executive 
or administrative official, or of any court, — whether of 
a State or of the United States, — which deprives any 
person of his life, liberty, or property without due 
process of law. Under this authority the Supreme 
Court exercises a jurisdiction over States and over the 
United States similar to that which the ordinary courts 



Jurisdiction of Courts Over States 109 

of justice exercise over private individuals. It is a 
logical and reasonable ground for maintaining and pre- 
serving the Union that the Union is the ultimate pro- 
tector and preserver of this law, and that in order to 
perform this function it must have a supremacy over 
the actions of constituent States to the extent necessary 
to enable it to perform the function. 

The question therefore arises, whether a true inter- 
national court can ever exist until the nations of the 
world recognize this supreme universal law. Until 
such recognition is made, the powers of any body of 
men called an international court can, it would seem, 
never rise higher than a mere interpretation of treaties; 
for conventions are but joint treaties and supremacy 
of treaties or conventions over national law by agree- 
ment can of necessity exist only so long as the agreement 
exists, unless the agreement is itself the recognition of 
a supreme universal law. A court to interpret treaties 
would be useful, but it would be an instrumentality 
and adjunct of the states creating it, and would be 
bound by their agreements, even though such agree- 
ments might palpably deprive individuals of life, lib- 
erty, or property without due process of law. 

If it be the fact, as American beliefs and experience 
would seem to indicate, that the test of the international 
character of a court is not whether it is established by 
the nations, but whether it administers a law which is 
supreme over the nations, there is, it would seem, no 
objection to national courts having jurisdiction to 
settle disputes in which foreign states or semi-foreign 
states (now called colonies or dependencies) are involved 
with citizens or states of the nation. Once it is recog- 
nized that a national court may administer a law which 
is supreme over states, there is no reason why, if the 
court is learned and impartial, it should not be resorted 



no The American Philosophy of Government 

to by foreign states for the judicial settlement of their 
disputes. So also federal states or empires may form 
their own courts for the administration of this supreme 
law as between their own constituent states, and may 
provide for the resort of foreign states to these tribunals. 
By the establishment of such national, federal or 
imperial courts having jurisdiction over states by ad- 
ministering this supreme universal law, the supreme 
international court — when one shall be established by 
agreement of the nations — will be safeguarded, as the 
Supreme Court of the United States is safeguarded by 
the fact that every court in the United States admin- 
isters this universal supreme law. Under such an ar- 
rangement the Supreme Court becomes "the last 
resort, on appeal," in disputes between states, and has 
the benefit of the consideration and action of other 
courts. 

Such an international supreme court would of course 
need to be safeguarded in every possible way, so that 
its attention might be invoked only when the sifting 
process has been carried to the last extremity and when 
the final issues have been determined and the material 
facts on both sides have been stated in the most suc- 
cinct form. During the Colonial period, England and 
Great Britain found it necessary to have the King in 
Council assisted by a subordinate council to act as 
master in chancery or referee, and to investigate social 
and economic questions. It was also found necessary 
that the King in Council should have power to appoint 
commissioners for investigating facts at a distance from 
Great Britain and should have, indeed, all the powers 
necessary to make its jurisdiction effective. Such 
powers, it would seem, an international supreme court 
ought to have. 

In view of the fact that states may represent the 



Jurisdiction of Courts Over States in 

claims of their citizens against foreign states, the volume 
of business of a supreme international court will tend 
to be increasingly large, and it will become increasingly- 
necessary as it has in the case of the Supreme Court of 
the United States, that the jurisdiction of such a court 
should, so far as possible, be limited to deciding ques- 
tions which it has been impossible to decide by agree- 
ment or by resort to any other tribunal. 

If it be the case, as it appears to be, that one of the 
functions of such an international supreme court would 
be to administer this supreme universal law, it would 
follow that it ought to have jurisdiction, similar to that 
which the Supreme Court of the United States has under 
the fourteenth amendment, in cases where a citizen 
of the state complains against his own state for its vio- 
lation of his fundamental rights as an individual. 
Jurisdiction of such cases, would, it would seem, be as 
useful for doing away with the necessity of civil war 
as would the jurisdiction of cases between states for 
doing away with the necessity of foreign war. 

This examination of the development of the American 
doctrine of jurisdiction of courts over states will, it is 
hoped, have served to show that the Supreme Court of 
the United States exists not merely as a part of the 
Federal Union for the interpretation of the Constitu- 
tion, but that it has a reason for its existence which 
appeals equally to all the nations of the world, in that 
it expounds and applies the supreme universal law 
securing the fundamental rights of the individual, 
which the Constitution recognizes and which binds all 
nations and peoples ; and in that it upholds the funda- 
mental rights of the states is the best means of uphold- 
ing this law. 

It would seem, therefore, that it is immaterial 
whether the nations of the world shall federate in the 



H2 The American Philosophy of Government 

same way that the United States have federated or in 
any other way; or whether they shall remain substan- 
tially as they are at present. The close relationship 
of federal union under a general government may be 
too intimate for the separated and diverse nations of 
the world, and the most efficient bond of union may be 
this supreme universal law securing the fundamental 
rights of the individual against all governmental action, 
administered by the courts of all the nations, federal 
states, and empires of the world, and in the last resort 
on appeal by an international supreme court established 
by the nations. 



EXECUTION OF JUDGMENTS AGAINST 
STATES 



"3 



EXECUTION OF JUDGMENTS AGAINST 
STATES 

Reprinted from "The Washington Proceedings of the American 
Society for the Judicial Settlement of International Disputes," De- 
cember, 1 91 6. 

JUDGMENTS AGAINST STATES 

IN the Dred Scott case the parties were a black man 
and a white man; the former claiming emancipa- 
tion from slavery because the latter, as his owner, 
had taken him from a slave-state to a free-soil state. 
The case came to the Supreme Court by virtue of its 
appellate jurisdiction. The judgment of the Supreme 
Court in favor of the white man as owner of the black 
man, was in fact a judgment against all the free-soil 
states, constituting about one half the states of the 
Union ; and it was and is so universally regarded. The 
attempt to compel the execution of the judgment as a 
precedent led to the Civil War. The execution of the 
judgment as a precedent was forever brought to an 
end by the adoption of the thirteenth, fourteenth and 
fifteenth amendments to the Constitution. 

In the case of Virginia vs. West Virginia the parties 
were two States of the Union. It was brought in the 
Supreme Court of the United States as a court of origi- 
nal jurisdiction. The issue involved was whether West 
Virginia should pay Virginia a less or greater amount 
of money under a contract between them. A greater 
amount was adjudged to be due than West Virginia 
expected, and more than it thinks reasonable. A ques- 

115 



n6 The American Philosophy of Government 

tion of the compulsory execution of the judgment has 
thus arisen. 

In the Dred Scott case the constitutional rights of the 
States of the Union were at issue, as well as the funda- 
mental rights of all men to life, liberty, and the pursuit 
of happiness, of which every state, equally with the 
Union, is the constitutional guardian. It dealt with 
tremendous questions, vital to all men and to all 
sociated groups of men everywhere and in all time. 

In the Virginia-West Virginia case, nothing but mon- 
ey is involved. The issues are in no sense fundamental 
or vital. No constitutional right of any state is affected. 

Clearly, the judgment in the Dred Scott case, though 
rendered in a suit between individuals was, in essence, 
a judgment against the free-soil states, equally as the 
judgment in the Virginia-West Virginia case, rendered 
in a suit between these states, was a judgment against 
the State of West Virginia. Moreover, considering the 
vast issues involved in the former case and the insig- 
nificant issues involved in the latter, it is reasonable to 
conclude that issues vital to states may be involved 
equally in the one class of cases as in the other. 

The question of the compulsory execution of the 
judgments of a court of a federal or federalistic union 
against a member-state of the Union, therefore, in- 
cludes a consideration of the compulsory execution both 
of the indirect judgments rendered against states in 
suits between individuals and corporations, which we 
commonly speak of as judgments affecting states' 
rights; and of the direct judgments rendered in suits to 
which a state is a party defendant of record. 

Moreover, it is important, in such an inquiry, never 
to minimize the importance of these indirect judgments 
against states; for a consideration of the principles of 
federal and federalistic unions will show that the indi- 



Judgments Against States 117 

rect jurisdiction of Courts over the member-states is a 
necessary, permanent, and ineradicable incident of all 
such unions; and that the direct jurisdiction of Courts 
over states is not a necessary incident of such unions, 
but is an expedient which has been adopted only by 
such federal and federalistic unions as have deemed it 
suitable to their circumstances, and which has not yet 
been proved to be capable of universal application. 

As illustrating the truth of the proposition that indi- 
rect judgments of courts against states are a necessary 
incident of all kinds of federal or federalistic unions, 
one may recall, in addition to the Dred Scott case, 
Calvin's Case, decided in 1607 by an English court, in 
which the relations of England and Scotland under the 
union of the two states in the person of King James, 
as James I of England and James VI of Scotland, were 
adjudicated in a suit between individuals in their pri- 
vate capacity; the case of Campbell vs. Hall, decided 
in 1774 by an English court, in which the relations be- 
tween Great Britain and the American Colonies as 
members of the federalistic union known as the British 
Empire, were adjudicated in a suit between individuals 
— the defendant being sued in an official capacity ; and 
the Insular cases, decided between 1901 and 19 12, by 
American courts and on appeal by the Supreme Court 
of the United States, in which the relations between 
the United States and the insular countries under its 
jurisdiction, together forming a federalistic union to 
which no name has yet been attached, were adjudicated 
in suits between individuals and corporations, suing or 
sued in private or official capacities. 

As illustrating the truth of the proposition that it is 
not necessary that courts in federal or federalistic 
unions should have direct jurisdiction over the member- 
states, and that such arrangements are dictated in each 



n8 The American Philosophy of Government 

case by expediency and effectuated by agreement be- 
tween the states, one may refer to the various federal 
constitutions, written and unwritten, which have ex- 
isted and which now exist. Such an examination would 
reveal few instances in which a direct jurisdiction over 
states has been conferred on courts. The Constitution 
of the United States and that of Australia would, in- 
deed, be the most conspicuous examples of federal con- 
stitutions in which this jurisdiction is conferred on 
courts; but under these constitutions, equally with all 
other federal or federalistic constitutions, the courts 
also render indirect judgments against the member- 
states. The absence of such a provision in the written 
or unwritten constitution of a federal or federalistic 
union does not mean that the courts have not jurisdic- 
tion over the member- states, but only that they exercise 
it indirectly. 

By the Constitution of the United States, the juris- 
diction to render a direct judgment against a member- 
state of the Union is confined to the Supreme Court; 
and for this purpose it is given original jurisdiction. 
Jurisdiction to render indirect judgments against states 
exists in all the courts within the United States. The 
Supreme Court of the United States has jurisdiction to 
render indirect judgments against states as an incident 
of its appellate jurisdiction, by virtue of which it re- 
views, on appeal, writ of error, or certiorari, judgments 
of the subordinate courts of the United States in all 
cases within their jurisdiction, and also judgments of 
the Supreme Courts of the States in cases arising under 
the Constitution of the United States. 

The execution of the direct judgments of the Supreme 
Court against a state is supervised by that Court di- 
rectly. In the case of indirect judgments of the Su- 
preme Court against a state by virtue of its appellate 



Judgments Against States 119 

jurisdiction, the Supreme Court remands the case to 
the court below for judgment in accordance with its 
decision, and for execution of the judgment so to be 
rendered; and that court supervises the execution of 
the judgment. If, however, a state should oppose the 
execution of such an indirect judgment, the Supreme 
Court would doubtless participate in supervising the 
execution in every way permitted by the Constitution 
and statutes. 

The compulsory execution of any judgment of the 
Supreme Court against a state, whether the judgment 
be rendered indirectly in an action between individuals 
or corporations affecting states' rights, or directly in 
an action to which the defendant state is a party, 
proceeds on the same general principles. The judgment 
of the Supreme Court is in both cases an act of the 
United States ; the opposition of a state to the execution 
of the judgment is in both cases the opposition of the 
State to an act of the United States. In order, however, 
to simplify the inquiry, it will be assumed in the follow- 
ing discussion of the nature, the source, the extent, and 
the manner of exercise of the power of the United States 
which is exercised in compelling the execution of a 
judgment of the Supreme Court against a state, that 
the judgment has been rendered directly against the state 
in the exercise of the original jurisdiction of the Court. 

THE NATURE OF THE POWER OF EXECUTION 

In all civilized countries in which the Roman or the 
English system of law prevails, courts not only hear 
causes of disputes between individuals or corporations 
and render judgment, but also take certain action, 
after judgment, for the purpose of carrying the judg- 
ment into effect by compulsion, if compulsion proves 



120 The American Philosophy of Government 

to be necessary. The putting of a judgment into effect, 
by compulsion if found to be necessary, is called the 
execution of the judgment. 

All compulsory execution of governmental acts or 
decrees is, as the name execution implies, an exercise 
of the executive power of the state or nation. When 
courts take action for the compulsory carrying into 
effect of their judgments, they exercise executive, not 
judicial power. , (Edmund Randolph, attorney general 
of the United States, 1793, in the argument of the case 
of Chisholm vs. State of Georgia, 2 Dallas, 419, 428, 
said: "Perhaps, if a government could be constituted 
without mingling at all the three orders of power, 
courts should in strict theory, only declare the law of 
the case, and the subject upon which the execution is to 
be levied; and should leave their opinions to be en- 
forced by the executive power." 

Chief Justice Jay, in delivering his opinion in the same 
case (p. 478) said: "In all cases of actions against 
states or individual citizens, the national courts are 
supported in all their legal and constitutional proceed- 
ings by the arm of the executive power." 

In the case of U. S. Bank vs. Halstead, 10 Wheaton, 
51, decided in 1825, Justice Thompson, in delivering 
the opinion of the court (pp. 61, 62, 64) said: "The 
power given to the courts over their process is no 
more than authorizing them to regulate and direct the 
conduct of the marshal, in the execution of the process. 
. . . It is a power incident to every court from which 
process issues, to enforce upon such officer a compli- 
ance with his duty, and a due execution of the process 
according to its command.") 

An execution is only one form of the compulsory 
process of courts in the issuance of which courts exer- 
cise executive power. Subpoenas to compel the attend- 



Judgments Against States 121 

ance of parties or witnesses, attachments of property- 
pending suit, temporary injunctions, orders to produce 
testimony, as well as executions upon judgments, are 
manifestations of executive power wielded by the courts. 

Accordingly, the compulsory writs issued by courts, 
including writs of execution, are not in the name of the 
court, but in the name of the chief executive of the state 
or nation of which the court is an organ; or in the 
name of the state or nation ; or in the name both of the 
state or nation and of the chief executive. (In Free- 
man on Executions, ed. 1900, Vol. 1, §§ 1, 39, it is said: 
"The writ of execution is a written command or pre- 
cept to the sheriff or ministerial officer in writing and 
under the seal of the court, directing him to execute 
the judgment of the court. . . . The command of the 
writ may as properly be regarded as the command of 
the law as of the court. ... It has always been the 
custom in England to issue the writ in the name of the 
reigning sovereign, and in the greater portion of the 
United States in the name of the state or of the people 
of the state." 

Blackstone (vol. 4, p. 122), speaking of "Contempts 
against the King's Prerogative," says that such con- 
tempts "may also be ... by disobeying the King's 
lawful commands; whether by writs issuing out of 
•courts of justice, or by summons to attend his Privy 
Council.") 

In the courts of the United States, in pursuance of 
the evident purpose of the Constitution that the United 
States shall be sovereign and supreme within its allotted 
sphere, and the clear command of the Constitution that 
the President shall exercise the executive power of the 
nation, all writs of compulsory process have always 
been in the name of the President, as chief executive 
of the United States ; the full formula for the beginning 



122 The American Philosophy of Government 

of all such writs being "The United States of America, 
ss: The President of the United States of America, 

To Marshal, etc., Greeting:" Then follows a 

recital of the facts on which the action of the Marshal 
is to be based, and a command to the Marshal to take 
the compulsive action specified. (For the forms of 
writs in the United States courts see Appendix of 
Forms in The Statutory Jurisdiction and Practice of 
the Supreme Court, by P. Phillips; also in Jurisdiction 
and Procedure of the Supreme Court of the United States, 
by Hannis Taylor; also in A Treatise on Federal Prac- 
tice, by Roger Foster.) 

The principle that all compulsory process of the 
United States courts shall be in the name of the Presi- 
dent, as Chief Executive of the United States, is not 
established by any act of Congress or by any executive 
order of the President, but by a rule of the Supreme 
Court of the United States, adopted at its first session 
in 1790, and ever since continued as a fundamental 
and unalterable principle of action of the United States 
courts in the issuing of compulsory process of any kind. 
At the first session of Congress held in 1789, the first 
action taken by the Senate, on April 1, was to ap- 
point a committee, with Senator Oliver Ellsworth 
(afterwards chief justice of the United States) as chair- 
man, "to bring in a bill for organizing the judiciary of 
the United States." The bill was brought in on June 
15 and was debated on eighteen days. After having 
been recommitted and reported back on July 13, it 
was passed by the Senate on July 17. This bill con- 
tained no provisions concerning process, except that 
by the 14 section all the United States courts were 
authorized to issue "writs of scire facias, habeas corpus, 
and all other writs not specially provided for by 
statute, which may be necessary for the exercise of 



Judgments Against States 123 

their respective jurisdictions, and agreeable to the prin- 
ciples and usages of law." 

The House of Representatives held the bill as passed 
by the Senate under consideration for nearly two 
months, there being considerable opposition to the 
system of circuit and district courts proposed; but 
on September 17 accepted the bill in principle though 
with amendments respecting details. The details were 
adjusted and the bill became a law on September 24. 

On September 17, when it was evident that the bill 
for organizing the courts was certain to be adopted 
the original Senate committee which had reported the 
bill for organizing the judiciary reported, through 
Senator Richard Henry Lee of Virginia, a bill "to 
regulate processes in the courts of the United States" 
which was passed by the Senate on September 19. 
This bill provided that "all writs or processes, issuing 
out of the Supreme or Circuit Courts, shall be in the 
name of the President of the United States." The 
House of Representatives objected to this provision 
and amended the bill so as to require all such writs 
and processes to be "in the name of the United 
States." 

The only speech in either House on this amendment, 
preserved in the Annals of Congress, is that of Mr. 
Stone, of Maryland. Speaking in favor of the House 
amendment, he said, as reported in the Annals of 
Congress on September 25 : 

"He thought substituting the name of the President, 
instead of the name of the United States, was a de- 
claration that the sovereign authority was vested in the 
executive. He did not believe this to be the case. The 
United States were sovereign ; they acted by an agency, 
but could remove such agency without impairing their 
capacity to act. He did not fear the loss of liberty 



124 The American Philosophy of Government 

by this single mark of power; but he apprehended 
that an aggregate, formed in one inconsiderable power 
and another inconsiderable authority, might, in time 
lay a foundation for pretensions it would be trouble- 
some to dispute, and difficult to get rid of. A little 
prior caution was better than much future remedy." 

Both Houses insisted on their respective views 
and a conference committee failed to find a solution 
for the dispute. On September 28, the Senate amended 
the bill by striking out the whole sentence above 
quoted concerning the style of the writ, by omitting all 
reference to the Supreme Court in the section in which 
it occurred, and by providing that in the circuit and 
and District Courts "the forms of writs and executions, 
except their style, and modes of process" should be as 
therein specified — thus leaving the styles of writs and 
executions in all the courts of the United States to be 
determined by rule of the Supreme Court or by a 
statute to be subsequently enacted. 

The Supreme Court, consisting of John Jay, as chief 
justice, James Wilson, of Pennsylvania, William Cush- 
ing, of Massachusetts, and John Blair, of Virginia, 
held its first session, according to the provisions of the 
Judiciary Act of 1789, on February 1, 1790, and on 
February 3, 1790, adopted a rule on the subject of the 
style of writs, which in substance has remained un- 
changed to this day. In its original form the rule 
was as follows (2 Dallas, 399) : 

"Ordered, That (unless, and until it shall be other- 
wise provided by law), all process of this court shall be 
in the name of the President of the United States." 

Congress in 1792, passed a fuller statute relating to 
processes in the United States courts, expressly ex- 
cepting from the statute "the style of writs " and giving 
the Supreme Court power to modify by rule the method 



Judgments Against States 125 

of proceeding on execution specified by the statute 
and power to make rules for the Circuit and District 
Courts. Under the statutes relating to process above 
referred to, the practice seems to have been adopted 
by the Supreme Court, and also by the Circuit and 
District Courts without any special rule or order be- 
ing made on the subject, of issuing all writs of com- 
pulsory process in the form stated in the text, namely 
1 ' The United States of America ss. The President of the 
United States," etc. It seems reasonable to infer that 
this form was selected with a view to meeting the demand 
of the Senate that all compulsory process should be in 
the name of the President, and of the House of Rep- 
resentatives that it should be in the name of the 
United States. The meaning of the formula seems to 
be that the compulsory processes of the United States 
are the commands of the United States, as sovereign, 
acting by the President, as chief executive of the United 
States, addressed to the ministerial officers of the 
United States. By adoption of this formula, it was 
made clear that resistance to the lawful acts of the 
marshal is a crime against the sovereignty of the 
United States of the nature of treason, and not a crime 
against the court or the executive in the nature of a con- 
tempt ; and that the President in enforcing the process 
of the United States courts does not act as a sovereign, 
but as chief executive of his sovereign, the United 
States. 

The courts of the United States, in thus wielding the 
executive power of the United States, authenticate or, 
as the legal expression is, " teste" the writ of the Presi- 
dent. This authentication is provided for by act of 
Congress. In the Supreme Court, the authentication or 
"teste" is by the Chief Justice; but even he does not 
actually sign the writ, the actual signature, according 



126 The American Philosophy of Government 

to the statute, being by the clerk of the Supreme Court. 
(The first section of the Process Act of 1789, which 
has continued to this day, provided that "all writs 
and processes issuing from the Supreme or a Circuit 
Court shall bear test of the chief justice of the Supreme 
Court, and if from a District Court, shall bear test of 
the judge of such court, and shall be under the seal 
of the court from which they issue; and signed by the 
clerk thereof.") 

A writ of execution of a judgment of the Supreme 
Court of the United States against a state, is thus the 
act of the United States of America, as sovereign within 
its sphere, and of the President of the United States, 
as Chief Executive of the United States, authenticated 
by the Supreme Court, addressed to the subordinate 
executive officer of the United States designated by 
the statute for the purpose — the United States marshal 
at large, styled by the statute the marshal of the Su- 
preme Court, advising him of the judgment rendered, 
specifying the mode of execution, and commanding him 
to execute the judgment in the manner specified. (By 
sections 219 and 224 of the Judicial Code of 191 1, the 
marshal of the Supreme Court is appointed by the Court 
and is required to "serve and execute all process and 
orders issuing from it.") As the marshal acts in 
the name of the United States and of the President, 
the writ calls into operation the whole moral in- 
fluence of the United States, to be wielded by the 
President as Chief Executive and the whole physical 
force of the United States, if need be, to be wielded by 
the President as Commander-in-Chief of the Army and 
Navy of the United States and of such part of the militia 
of the states as may be summoned into the service of 
the United States by authority of Congress and by 
executive order. 



Judgments Against States 127 

THE SOURCE OF THE POWER 

The question arises: By what constitutional au- 
thority do the courts of the United States thus wield 
the executive power of the United States in the name 
of the Chief Executive? The executive power of the 
United States is by section 1, article II, of the Consti- 
tution, ' Vested in a President of the United States." 
The judicial power of the United States is, in equally 
clear and precise words, by section 1, article III, 'Vested 
in one Supreme Court, and in such inferior courts as 
Congress may from time to time ordain and establish." 
Congress is by section 8 of article I and by other pro- 
visions of the Constitution granted certain specific 
powers, but none of these provisions has any bearing 
on the question except the tenth clause of section 1 of 
article VIII, which provides that Congress shall have 
power "to make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in 
the government of the United States, or in any depart- 
ment or officer thereof." 

It is evident from the whole Constitution and from 
the words and acts of the framers in the Constitutional 
Convention that the United States courts were in- 
tended to have the usual executive powers of courts; 
and the almost unanimous view of legislators, execu- 
tives, and courts has always been that these executive 
powers are derived from the grant of "the judicial 
power" made by the Constitution to the Supreme Court 
and to the other courts of the United States, as being 
necessarily implied in that power by the custom and 
usage of civilized nations. 

Courts have exercised this incidental executive power 
over their process in aid of their jurisdiction for many 



128 The American Philosophy of Government 

centuries. The practice apparently arose in the last 
days of the Roman Empire. Under the Roman system 
of early days, the judgment plaintiff was permitted, 
by proceedings before the magistrate, to seize the per- 
son of the judgment defendant in satisfaction of the 
judgment and keep him in slavery. Later on, the seiz- 
ure of all the property of the judgment defendant by 
the judgment plaintiff was substituted for enslavement. 
At a later period, the praetor es — the local chief execu- 
tives — authorized or instituted arrangements for mak- 
ing a division of the debtor's property among all his 
creditors. In the last days of the Roman Empire, the 
praetor, after rendering judgment in person or by a 
judge appointed by him, attended to the execution of 
the judgment, using military force if necessary. Both 
in rendering judgments and in executing them, all 
the Roman judicial tribunals and executives acted 
in the name of the emperor. From this system it 
resulted that the judicial tribunals gradually came 
more and more to superintend the execution of judg- 
ments. (See The Institutes of the Roman Law, by Dr. 
Rudolph Sohm (translated by Ledlie, 2d ed., 1901), 
p. 317.) Doubtless this produced a human and rea- 
sonable execution of the orders and judgments of these 
tribunals; for the practice was taken over into the 
judicial system of Continental Europe and of England 
at an early date. In England, failure of the sheriff to 
obey the lawful commands of the court was by statute 
made a crime of the nature of contempt, and resistance 
to an officer in executing the lawful commands of the 
court was made a crime of the nature of treason. The 
practice passed from England to the American Colonies, 
and they continued it when they became states, though 
their constitutions recognized the division of powers 
into the legislative, executive, and judicial, and placed 



Judgments Against States 129 

each power in charge of a special governmental 
organ. 

Under the circumstances it was natural that the 
framers of the Constitution should have refrained from 
inserting in it an express grant to the courts of the 
United States of all the executive powers then exercised 
by courts of the states. Such a grant would have been 
inconsistent with the division of powers made by the 
Constitution. Moreover it was unnecessary, since the 
people of the states and the states themselves were 
logically forced either to recognize that the United 
States courts had these executive powers as an incident 
of "the judicial power" granted to them, or to revolu- 
tionize the practice of the state courts. 

In view of the fact that the Constitution makes no 
express grant of these executive powers to the United 
States courts and that these powers are derived by 
implication from the grant of the judicial power, 
Congress has always refrained from enacting any statute 
which should purport to grant to the United States 
courts these executive powers. Such an act, if passed, 
might have been claimed to show that Congress con- 
sidered that no warrant could be found in the Constitu- 
tion for the exercise of such powers; and there would 
have been danger that such a statute might have 
been held unconstitutional as an attempt by Congress 
to confer executive powers on the judiciary. Congress 
has, however, by various statutes, passed at various times, 
recognized that the United States courts have power, 
under the Constitution, to issue and control all neces- 
sary compulsory process in aid of their jurisdiction, as 
a power derived from the Constitution, and has by 
statute effectuated and regulated the exercise of these 
powers. Thus in 1789, Congress by the fourteenth 
section of the Judiciary Act, empowered the United 



130 The American Philosophy of Government 

States courts to issue the writs of habeas corpus and 
scire facias, "and all other writs which may be necessary 
for the exercise of their jurisdictions, and agreeable to 
the principles and usages of law." This Judiciary Act 
also provided for the appointment of a United States 
marshal to attend the United States courts in each dis- 
trict, and required the marshal to "execute all lawful 
precepts directed to him and issued under the authority 
of the United States," giving him power "to command 
all necessary assistance in the execution of his duty." 
The Process Act of 1789 provided for the manner in 
which "all writs and processes" of the United States 
courts should "bear teste." By this act as finally 
amended in 1792, certain general principles were estab- 
lished as respects process in actions in the United States 
courts, and they were authorized to make rules regard- 
ing process, not inconsistent with the statutes, subject 
to the general rules provided by the Supreme Court. 
These statutory arrangements have continued with 
slight changes to this day. 

The Supreme Court, as was to be expected, has al- 
ways firmly asserted its power and the power of all the 
United States courts to issue all compulsory process 
necessary for the exercise of their respective jurisdic- 
tions. It has held that this power is derived by neces- 
sary implication from the grant of "the judicial power," 
and is exercised by the courts according to the principles 
established by Congress in its legislation for effectuating 
and regulating the exercise of the power, and according 
to the rules of court, not inconsistent with the statutes, 
these rules being governed by the general rules pre- 
scribed by the Supreme Court. (In the case of Way- 
man vs. Southard, 10 Wheaton, 1, decided in 1825, 
Chief Justice Marshall, delivering the opinion of the 
court, said (pp. 21, 23): 



Judgments Against States 131 

"One of the counsel for the defendants insists . . . 
that the government of the Union cannot, by law, 
regulate the conduct of its officers in the service of 
executions on judgments rendered in the Federal 
Courts; but that the state legislatures retain complete 
authority over them. The court cannot accede to this 
novel construction. The Constitution concludes its 
enumeration of granted powers with a clause authoriz- 
ing Congress to make all laws which shall be necessary 
and proper for carrying into execution the foregoing 
powers, and all other powers vested by this Constitution 
in the government of the United States, or in any de- 
partment or officer thereof. The judicial department 
is invested with jurisdiction in certain specified cases, 
in all which it has power to render judgment. That 
a power to make laws for carrying into execution all 
the judgments which the judicial department has power 
to pronounce, is expressly conferred by this clause, seems 
to be one of those plain propositions which reason- 
ing cannot render plainer. . . . The jurisdiction of a 
court is not exhausted by the rendition of its judg- 
ment, but continues until the judgment is satisfied. 
Many questions arise on the process subsequent to 
the judgment, in which jurisdiction is to be exercised. 
It is, therefore, no unreasonable extension of the words 
of the act [the section of the Judiciary Act giving the 
United States courts power to issue all writs necessary 
to the exercise of their jurisdiction] to suppose an exe- 
cution necessary for the exercise of jurisdiction." 

In the case of United States Bank vs. Halstead, 10 
Wheaton, 51, decided in 1825, Justice Thompson, 
delivering the opinion of the court (p. 64), said: 

"An execution is the fruit and end of the suit, and 
is very aptly called the life of the law. The suit 
does not terminate with the judgment; and all pro- 



132 The American Philosophy of Government 

ceedings on the execution are proceedings in the suit, 
and which are expressly, by act of Congress [the Pro- 
cess Act] put under the regulation and control of every 
court from which process issues." 

See also Gordon vs. the United States, 117 U. S., 
697, 702, 704. 

The provision of the process Act of 1789, authorizing 
the United States courts to issue all writs "which may 
be necessary to their respective jurisdictions, and 
agreeable to the usages of law" has never been changed. 
(See sec. 262 of the Judicial Code of 191 1.) Nor has 
the provision relating to the manner in which process 
shall bear teste. (See Revised Statutes U. S., sec. 
911) 

In Ex parte Siebold, 100 U. S., 371, Mr. Justice 
Bradley, delivering the opinion of the court, said: 

"We hold it to be an incontrovertible principle, 
that the government of the United States may, by 
means of physical force, exercised through its official 
agents, execute on every foot of American soil the power 
and functions that belong to it. . . . It must execute 
its powers or it is no government. It must execute 
them on the land as well as on the sea, on things as 
well as on persons. And, to do this, it must necessarily 
have power to command obedience, preserve order and 
keep the peace; and no person or power in this land 
has the right to resist or question its authority, so long 
as it keeps within the bounds of its jurisdiction.") 

THE EXTENT OF THE POWER 

Congress has never attempted to define the limita- 
tions upon the power of the Supreme Court in cases of 
which it has original jurisdiction. In these cases, the 
court by its own interpretation of the constitutional 



Judgments Against States 133 

grant of power, determines both the limitations of its 
own jurisdiction and the extent of its executive powers 
in issuing compulsory process in aid of its jurisdiction. 
The rules concerning execution of judgments which 
Congress has enacted apply to cases in the Supreme 
Court of which it has appellate jurisdiction and to all 
cases in the other courts of the United States. These 
rules are, that execution in actions at law shall be levied 
in the same manner as in a court of the state in which 
the execution is levied, and that execution in actions of 
equity and admiralty shall follow the rules observed in 
equity and admiralty courts at the time the Constitu- 
tion was adopted. These provisions are no doubt to be 
observed by the Supreme Court in cases of its original 
jurisdiction, so far as they are applicable. 

Inasmuch as the Supreme Court, in cases of its origi- 
nal jurisdiction, determines the limits of its jurisdic- 
tion, it has power to hold that it has no jurisdiction in 
particular classes of cases between states, to determine 
what kinds of property of the defendant state are en- 
titled to exemption from execution, and to establish the 
principles upon which it will act in refusing on grounds 
of public policy to issue a writ of execution. When it 
holds that it has no jurisdiction of a designated class 
of cases between states the decision necessarily also 
operates as a limitation upon the executive powers of 
the court. Whenever it holds that certain kinds of 
property owned by states are exempt from execution, 
and whenever it denies a motion for a writ of execution 
against a state on grounds of public policy, it plainly 
establishes limitations upon its executive powers. 

The Supreme Court has held that it has no jurisdic- 
tion of cases between states in which the complaining 
state comes before the court "as parens patriae, trustee, 
guardian or representative of all its citizens," seeking 



134 The American Philosophy of Government 

reparation from the defendant state for some injury 
done by it acting in a similar representative capacity 
for all of its citizens ; but that those cases between states 
only are justiciable which have for their purpose the 
obtaining of reparation for "a special and peculiar in- 
jury" committed by the defendant state on the plaintiff 
state of such character "as would sustain an action by 
a private person." (State of Louisiana vs. State of 
Texas, 176 U. a 1, 17.) 

The Supreme Court has never yet had occasion to 
decide to what extent the Constitution limits the juris- 
diction of the Supreme Court by confining its jurisdic- 
tion to "controversies between two or more states." 
The Judiciary Act of 1789 interpreted the word "con- 
troversies" by using the expression "civil controver- 
sies." Justice Iredell in the case of Chisholm vs. State 
of Georgia, 2 Dallas, 419, 431, stated that the word 
"controversies" was used so as to exclude all criminal 
cases, from which it would appear to be a natural infer- 
ence that the Supreme Court has no jurisdiction of 
actions between states which are based on an alleged 
wrongful motive or intent of the defendant state. 

The Supreme Court has held that ' ' the public prop- 
erty held by any municipality, city, county, or state is 
exempt from seizure upon execution, because it is held 
by such corporation, not as a part of its private assets, 
but as a trustee for public purposes." (In the case of 
South Dakota vs. North Carolina, 192 U. S. 286. 
Opinion of the court by Justice Brewer, p. 318.) 

The court has also held that it will not issue an exe- 
cution upon a judgment against a state when it appears 
that the state has no means of satisfying the judgment 
except through the exercise of its taxing power. (Rees 
vs. City of Watertown, 19 Wallace, 107, 116, 117.) 

In the case of Virginia vs. West Virginia, which is now 



Judgments Against States 135 

pending in the Supreme Court, on a motion for an 
execution on a money judgment of $12,000,000 and in- 
terest rendered in favor of Virginia, a claim is made by 
West Virginia that the Supreme Court has no power 
to issue execution on a money judgment against a state. 
The court has denied the motion for execution, in order 
to give the legislature of West Virginia an opportunity 
to provide for the payment of the judgment. If no 
such provision is made, however, Virginia has permis- 
sion to renew the motion for an execution, and the court 
will doubtless decide upon the point raised by West 
Virginia. 

During the time that the American Union existed 
under the Articles of Confederation, suits by individu- 
als against states were sometimes brought in state 
courts and the rule was then established that no action 
for a money judgment would lie against a state, on the 
ground that a state court could not enforce execution 
of such a judgment. (Nathan vs. Commonwealth of 
Virginia, 1 Dallas, 77.) Only in cases where property 
belonging to a state was found within the jurisdiction 
of the court of another state, could the court take juris- 
diction, and not even then unless the suit was in rem, 
that is, against the property itself, to determine the 
title to it or liens upon it. It was thought inconsistent 
with state sovereignty that any compulsion should be 
placed upon a state on account of a contract debt; 
and, to avoid the question of execution, the state courts 
declined to take jurisdiction. That all compulsion of 
states is war, is self-evident. Hamilton, in No. 81 of 
the Federalist, recognized this when he said, arguing 
against the jurisdiction of the United States courts in 
actions brought by individuals on debts due by the 
states: "To what purpose would it be to authorize 
suits against states for the debts they owe ? How could 



136 The American Philosophy of Government 

recoveries be enforced? It is evident that it could not 
be done without waging war against the contracting 
state: and to ascribe to the Federal courts, by mere 
implication, and in destruction of a pre-existing right 
of the state governments, a power which would involve 
such a consequence would be altogether forced and un- 
warrantable." The sentiment of civilized mankind 
seems to be crystallizing on the proposition that an 
unpaid debt is not adequate as a cause of war. Al- 
though the Convention respecting the Limitation of 
Force in the Recovery of Contract Debts adopted by 
the second Hague Conference permits the use of force 
when the debt has been reduced to judgment by an 
arbitral award, nevertheless the principle underlying 
that Convention is the broad principle above stated — 
that an unpaid debt is not an adequate cause of war; 
so that ultimately the Convention may be extended to 
cover even contract debts reduced to judgments. The 
claim made by West Virginia in bar of the power of 
the Supreme Court to issue execution on a money 
judgment may, therefore, quite possibly be upheld by 
the Supreme Court. 

The only case in which the court has ever taken pro- 
ceedings of the nature of execution, after judgment 
against a state, would appear to be that of the State 
of South Dakota vs. State of North Carolina, but in 
this case there was property of North Carolina not 
used by it for any public purpose which was within 
the control of the court. (192 U. S. 286.) The suit was 
brought by South Dakota on bonds owned by it which 
had been issued by North Carolina, and which were se- 
cured by railroad stock owned by North Carolina and 
mortgaged by it to the holder of the bonds to secure their 
payment. The court rendered judgment on the bonds 
and ordered the mortgaged stock sold by the marshal 



Judgments Against States 137 

of the Supreme Court on foreclosure. Though the 
proceeding was not in rem, yet it may be claimed to fall 
within the principle applied by the state courts in suits 
against states during the period of the Confederation. 

In considering the extent of the power of the Supreme 
Court to execute judgments against states, it is proper 
always to bear in mind that the executive powers were 
conferred on courts in the days when courts dealt only 
with individuals as litigants. The reasons for confer- 
ring and continuing these powers doubtless were that 
the courts proved themselves to be able, through the 
sheriff, aided by the posse comitatus, to execute their 
judgments against individuals, and to execute them 
more conveniently, more expeditiously, more humanely, 
and more justly, than the executive department of the 
goverment. These reasons do not apply to courts 
which deal with states as litigants, in which execution of 
the judgment is only another name for civil war. The 
marshal with all the assistance he can command is 
powerless in dealing with a state. If judgments against 
states are to be executed, the combined moral influence 
of the Supreme Court, the President, and the Congress 
must be exerted, the special responsibility resting upon 
the President, and the whole physical force of the 
United States must be used, if necessary to maintain 
the majesty and power of the United States and its 
legal right of supremacy when acting within its allotted 
sphere. In the case of Chisholm vs. State of Georgia, 
2 Dallas, 419, Justice Blair said (p. 451): 

"Nor does the jurisdiction of the court, in relation 
to a state, seem to be questionable, on the ground 
that Congress has not provided any form of execution, 
or pointed out any mode of making the judgment 
against a state effectual. The argument ab inutili 
may weigh much in cases depending upon the construe- 



138 The American Philosophy of Government 

tion of doubtful legislative acts, but can have no force, 
I think, against the clear and positive directions of an 
act of Congress and of the Constitution. Let us go 
on as far as we can; and if, at the end of the business, 
notwithstanding the powers given us in the fourteenth 
section of the judicial law [the power to issue all writs 
necessary for the exercise of jurisdiction], we meet 
difficulties insurmountable to us, we must leave it to 
those departments of government which have higher 
powers; to which, however, there may be no necessity 
to have recourse. Is it altogether a vain expectation 
that a state may have other motives than such as 
arise from the apprehension of coercion, to carry into 
execution a judgment of the Supreme Court of the 
United States, though not conformable to [its] own 
ideas of justice?" 

It is doubtless in view of this impossibility of courts 
going very far in executing judgments against states 
that all the tribunals of which history gives us informa- 
tion which have been granted jurisdiction in contro- 
versies between states or nations have not been endowed 
with any executive powers, but have been compelled 
to rely upon an agreement of the litigants in advance to 
abide by the judgment or to certify their judgments 
to an executive upon which the responsibility for exe- 
cuting the judgment or declining to execute it, was 
placed. 

Thus the Imperial Chamber established in 1495, in 
the Holy Roman Empire, which is referred to by Ham- 
ilton, in No. 80 of the Federalist, as the prototype of 
the United States Supreme Court regarded as a tri- 
bunal for the pacific settlement of interstate disputes, 
had no executive powers; but only certified its judg- 
ments to the Imperial Council, which with the Emperor 
constituted the executive and legislature of the Empire. 



Judgments Against States 139 

The Imperial Council decided whether or not to execute 
the judgment, and determined the manner and form 
of the execution in each case. (Geschichte der Deutschen, 
by M. I. Schmidt, (ed. 1808), vol. 4, pp. 364, 390.) 

The various political committees of the English and 
British Privy Council which had jurisdiction to hear 
and determine intercolonial disputes and disputes be- 
tween the colonies and the mother country, had no 
executive powers, but merely certified their judgments 
to the King by way of advice to him; and he, advised 
by his whole Council, as chief executive, determined 
the question of execution. (The final section of the 
Instructions of Charles II to the Council of Foreign 
Plantations, of December 1, 1660, was as follows: 
"You are hereby required and empowered to advise, 
order, settle, and dispose of all matters relating to 
the good government, improvement, and management 
of our foreign plantations or any of them, with your 
utmost skill, discretion, and prudence; and in all cases 
wherein you shall judge that further powers and 
assistance shall be necessary, you are to address your- 
selves to us and our Privy Council for our further 
pleasure, resolution, and direction therein." (The 
Administration of Dependencies, by A. H. Snow, p. 82.) 

The Permanent International Arbitration Court es- 
tablished by the first Hague Conference has no execu- 
tive or legislature to execute its awards. In lieu of this, 
litigant nations are required to agree in advance to 
accept its award. (Convention for the Pacific Settle- 
ment of International Disputes, Art. 18 (1899); 
Art. 37 (1907); printed in The Hague Conventions 
and Declarations of 1899 and 1907, edited by James 
Brown Scott, pp. 55, 56. The Draft Convention 
relative to the creation of a Judicial Arbitration 
Court approved by the Second Hague Conference 



140 The American Philosophy of Government 

(printed in the same volume, pp. 31-39) has no pro- 
vision for the execution of the judgments of the 
proposed court, nor does it appear that the nations 
which should adopt the convention would obligate 
themselves to conform to these judgments.) 

This is plainly compulsion ; for though the nations are 
free to use the tribunal or not, it is impossible for any na- 
tion to use it without placing itself under moral obliga- 
tions to the other nation and to the Society of Nations. 
The moral influence of the court is thus diminished 
and no method is provided for executing its awards. 
It seems clear that courts having jurisdiction in contro- 
versies between states or nations should either give 
judgments which the litigants are free to accept or 
reject — in which case the moral influence of the court 
would have its maximum effect — or else should, as 
organs of a compulsive union of states, have their 
judgments executed by the executive and legislature 
of the compulsive union. 

The Articles of Confederation provided for the estab- 
lishment of tribunals for the pacific settlement of dis- 
putes between states, but made no definite provision 
for enforcing them. The framers of the Constitution 
in conferring on the Supreme Court "the judicial 
power" in "controversies between two or more states"; 
in vesting in the President "the executive power" and 
requiring him ' ' to take care that the laws are faithfully 
executed"; and in giving Congress power to effectuate 
these powers, evidently considered that the Constitu- 
tion, as a whole, made adequate provision for the exe- 
cution of judgments of the Supreme Court rendered 
against states in cases where such execution was proper; 
but none of them seems to have thought that the respon- 
sibility of the Supreme Court in executing such judg- 
ments was exclusive, or was without great limitations. 



Judgments Against States 141 

(James Wilson, speaking on December 7, 1877, in the 
Pennsylvania Convention called to consider the rati- 
fication of the Constitution of the United States, said: 
1 ' This power [to determine controversies between states] 
is vested in the present Congress, but they are unable, 
as I have already shown to enforce their decisions. 
The additional power of carrying their decrees into 
execution, we find is therefore necessary, and I pre- 
sume no exception, will be taken to it." Pennsyl- 
vania and the Federal Convention, by John Bach Mc- 
Master and Frederick D. Stone, p. 356.) 

In the great case of Chisholm vs. State of Georgia — 
the first case in which the powers of the Supreme Court 
were considered, decided in 1793, Chief Justice Jay said : 

1 'In all cases of actions against states or individual 
citizens, the National Courts are supported in all their 
legal and constitutional proceedings and judgments by 
the arm of the executive power; but in cases of actions 
against the United States, there is no power which the 
courts can call to their aid. From this distinction 
important conclusions are deducible, and they place the 
case of a state, and the case of the United States, in 
very different points of view." (2 Dallas, 419.) 

Congress, recognizing the constitutional duty of the 
President to come to the aid of the Federal Courts 
when necessary to execute their judgments, effectuated 
his powers by statute in 1792, and 1795, authorizing 
him to use the armed forces of the United States for 
this purpose. This statutory provision, though amend- 
ed at various times, has always remained on the statute 
books. In its original form the statute made the Presi- 
dent's action dependent upon a written notification 
received by him from the chief justice or an associate 
justice of the Supreme Court of the United States; but 
this limitation was soon repealed, and the question of 



142 The American Philosophy of Government 

the interposition of the President was left to be deter- 
mined by the President, thus relieving the Supreme 
Court of any odium which the use of military force 
might involve. 

President Madison, writing to Governor Snyder of 
Pennsylvania on April 13, 1809, acknowledging receipt 
of a copy of a Pennsylvania statute designed to conform 
to a judgment of the United States Court, said : 

"The Executive is not only unauthorized to prevent 
the execution of a decree sanctioned by the Supreme 
Court of the United States, but is especially enjoined 
by statute to carry into effect any such decree, where 
opposition may be made to it." (Life and Writings 
of Madison, Vol. 2, p. 438. The act referred to by 
President Madison was the act of May 2, 1792, au- 
thorizing the President to call forth the militia "to 
execute the laws of the Union, suppress insurrections 
and repel invasions" as modified by the act of Febru- 
ary 28, 1795, enacted for the same purpose. 

The statutes now in force on this subject are Sections 
5298 and 5299, U. S. Revised Statutes. Section 5298 
contains the substance of the original act of 1792, 
and in addition authorizes the President, "whenever 
it shall become impracticable, in the judgment of 
President, to enforce, by the ordinary course of ju- 
dicial proceedings, the laws of the United States 
within any state or territory, to employ, not only the 
militia, but also "such parts of the land and naval 
forces of the United States as he may deem necessary 
to enforce the faithful execution of the laws of the 
United States, or to suppress such rebellion." 

See also section 3493, which is a part of the chapter 
relating to civil rights under the fifteenth amend- 
ment. By this the President is authorized "to employ 
such part of the land or naval forces of the United 



Judgments Against States 143 

States, or the militia, as may be necessary to aid in 
the execution of judicial process issued under any of 
the preceding provisions." 

Chief Justice Taney, in a case decided by him in the 
United States Circuit Court in 1861, said: 

"In exercising the power to 'take care that the laws 
are faithfully executed,' the President is to take care 
that they be faithfully carried into execution, as they 
are expounded and adjudged by the coordinate branch 
of the government to which that duty is assigned by 
the Constitution. It is thus made his duty to come to 
the aid of the judicial authority, if it is resisted by a 
force too strong to be overcome without the assistance 
of the executive arm; but in exercising this power he 
acts in subordination to judicial authority, assisting it 
to execute its process and enforce its judgments." 
{Ex parte Merryman, 17 Federal Cases, 149.) 

By ' "subordination" Chief Justice Taney doubtless 
meant not subordination in the legal sense, but in the 
philosophical sense. His idea was evidently that the 
President in executing the judgments of the Federal 
Courts was to act promptly and strongly as a military 
commander, but only for the purpose of executing the 
judgment in the same manner as the court itself would 
have done ; thus subordinating the power of the United 
States to those great and fundamental principles of 
equality and justice which have always influenced 
courts in executing their judgments. 

It seems reasonable to conclude, therefore, that inas- 
much as all executive powers exercised by courts have 
their origin in public policy, and inasmuch as the Execu- 
tive may properly exercise these powers in cases in 
which the Courts prefer not to exercise them on grounds 
of public policy, or are unable to exercise them, the 
Supreme Court may, in controversies between states of 



144 The American Philosophy of Government 

which it has jurisdiction, proceed with the execution 
to any extent that it deems proper, or may refuse to 
exercise its executive powers altogether ; its action being 
determined by considerations of public policy. Its 
failure to act does not necessarily mean that the judg- 
ment will not be executed; for the President is author- 
ized by the Constitution to execute judgments of the 
United States courts, and is able to do so if furnished 
by Congress with the requisite force. In executing a 
judgment of the Supreme Court against a state, the 
President doubtless has constitutional power to act on 
his own initiative in aid of the court; but probably in 
practice the court would, in most cases, certify the 
judgment to the President, either leaving it wholly to 
him and to Congress to decide whether to execute it 
and in what manner, or making recommendations as to 
the course to be followed. Since the above was 
written, an attempt has been made to institute 
a new method of procedure in aid of execution of 
judgments rendered by the Supreme Court against 
States. On February 5, 191 7, the State of Virginia 
filed in the Supreme Court a bill for a mandamus 
in aid of execution in the case of Virginia vs. West 
Virginia, to which case reference has been made above. 
To this bill all the persons constituting the whole 
legislative body of West Virginia were made parties 
defendant. The object of the mandamus proceeding 
was to compel these defendants in their official ca- 
pacities, as together constituting the legislative body 
of West Virginia, to levy a tax to pay the judgment. 
The authorities cited by Virginia, in its brief in support 
of its application for a rule to show cause, were the 
cases in which the Supreme Court has sustained the 
action of the Circuit Courts of the United States in 
issuing writs of mandamus against taxing officers 



Judgments Against States 145 

of municipal corporations, in aid of the execution of 
the judgments of these courts against these munici- 
pal corporations, compelling these officers to levy taxes 
to pay the judgment, in compliance with State laws 
imposing this duty upon the municipal officials. The 
case of Louisiana vs. Jumel. 107 U. S. 711, 727, 728, 
is particularly relied upon. In the cases above re- 
ferred to, the United States Courts exercised no com- 
pulsion upon the State ; they only compelled municipal 
officers to act as the State, by laws already enacted, 
had directed them to do. The object of the man- 
damus proceeding in the Virginia- West Virginia case 
is to exercise compulsion upon the State, by requir- 
ing State officials, assembled as the supreme legislature 
of the State, to enact new laws. The claim is made 
by Virginia that the voluntary submission of West 
Virginia to adjudication of the claim of Virginia 
against it by the Supreme Court, was a voluntary 
submission to compulsion by the Supreme Court, 
as respects its supreme legislative action, for the bene- 
fit of Virginia. 

THE MANNER OF EXERCISING THE POWER 

The executive power proceeds in its work of making 
effective the just commands of the state or nation partly 
by means of conciliation and partly by means of force. 
The chief executive of a state or nation wields the col- 
lective moral influence of its people and their united 
physical force. It is gradually being perceived that the 
best and most lasting results can be obtained by induc- 
ing voluntary obedience to the commands of the state 
through conciliation, and that the highest use to which 
the physical force of the state can be put is to protect 
the dignity of the state and of its agencies so that they 



146 The American Philosophy of Government 

may effectively pursue their conciliative work and 
bring about just government by the consent of the 
governed. 

If the President were called upon to execute a judg- 
ment of the Supreme Court, he would, if he accepted 
the above principles as the true principles of executive 
action, first of all satisfy himself that the decision was 
constitutional and according to law ; for it is conceivable 
(though in the highest degree unlikely) that a judgment 
even of the Supreme Court might itself be unconstitu- 
tional or contrary to law. President Jackson, in his 
Proclamation of December 11, 1832, warning South 
Carolina against attempting to nullify the United 
States tariff act, said: "There are two appeals from 
an unconstitutional act passed by Congress — one to the 
judiciary, the other to the people and states." So from 
any judgment of the Supreme Court which involves 
considerations of a political nature, there is an appeal 
to the people and states; and the President, when 
called upon to execute a judgment of the Supreme 
Court against a state, would perforce give heed to the 
judgment of this majestic court of final appeal. 

The President would also wish to be advised as to 
how he might execute the judgment so as not to inter- 
fere with the great principles of the Constitution; for 
though a judgment of a United States court is undoubt- 
edly a law of the United States which the President is 
bound to cause to be faithfully executed, it is in the 
nature of a private law, even when it is a judgment of 
the Supreme Court against a state, and it must be 
executed so as to conform to fundamental principles. 

But doubtless no President, upon receiving from the 
Supreme Court a judgment against a state of the Union 
properly certified, rendered in a case plainly justiciable 
as being capable of being determined by the principles 



Judgments Against States 147 

of law and equity as recognized by our own state and 
national courts and legislatures, in which the facts had 
been fully ascertained and the judgment rendered after 
due hearing and deliberation, would long hesitate to 
use his moral influence as Chief Executive of the Union 
and all the physical force of the United States which 
Congress had placed at his disposal, to compel execu- 
tion of the judgment. 

The provision of the Constitution that "the President 
shall take care that the laws are faithfully executed" 
seems generally to have been considered as sufficient 
authority in itself to enable the President to execute 
the constitutional powers of the United States whenever 
resistance is offered to them ; but Congress has by many 
statutes effectuated this power of the President. It 
would therefore be proper for the President, in case he 
doubted whether existing statutes gave him sufficient 
authority to execute a judgment of the Supreme Court 
against a state, to ask Congress to legislate so as to 
supply him with the necessary means of exercising 
moral influence and so as to place adequate military 
and naval force at his disposal. 

Perhaps also the President has authority, if he deems 
proper, to call upon Congress to act as a Council of 
Conciliation in bringing to bear the collective moral 
influence of the people of the United States on a state 
against which a judgment has been so rendered. By 
section 10 of Article I of the Constitution it is provided 
that "no state shall, without the consent of Congress 
. . . enter into an agreement or compact with another 
state." This necessarily implies that any state may, 
by the consent of Congress, enter into any agreement 
or compact with another state. The power given to 
Congress to consent to agreements between states 
would seem to imply, by reasonable implication, the 



148 The American Philosophy of Government 

power in Congress to conciliate between states, in acute 
cases of dispute, so as to induce them to agree. In 
the case of State of Louisiana vs. State of Texas, 176 
U. S. 1, Chief Justice Fuller, delivering the opinion 
of the court, said (p. 17): "Controversies between 
them [states of the Union] arising out of public re- 
lations and intercourse cannot be settled either by 
war or diplomacy, though, with the consent of Con- 
gress, they may be composed by agreement." But, 
though the President might thus perhaps call upon the 
Congress to act as the Council of Conciliation, it would 
doubtless be inexpedient to do so in case of any dis- 
putes which might lead to a division of Congress on 
sectional lines. In such cases it would be safer for the 
President to assume full responsibility and full power, 
as he has the constitutional right to do; only calling 
upon Congress to effectuate his powers, if necessary, 
by legislation. 

Inasmuch as the execution by the President of a 
judgment of the Supreme Court against a state is an 
act of the same kind as the execution of an act of 
Congress, the precedents established by two of our 
greatest Presidents — Washington and Jackson — in com- 
pelling the execution of acts of Congress may properly 
be considered in this connection. These precedents 
show that it is essentially the moral and conciliating 
influence of the United States which the President is 
to exercise. Though he is to use the military and naval 
force of the United States to an overwhelming and irre- 
sistible extent, he is to use it essentially as his protector 
and as the protector of the majesty and dignity of the 
United States while engaged in the work of conciliation. 

President Washington had occasion to compel the 
execution of an act of Congress in 1794. The Excise 
Act of 1 79 1 was resisted in the four western counties of 



Judgments Against States 149 

Pennsylvania. At his request, Congress, passed laws 
making resistance to the execution of laws of the United 
States and of legal process of the United States courts 
a crime, and authorizing the President to use the militia 
in suppressing conspiracies for resisting these laws or 
judicial proceedings under them ; it being provided that 
the warrant for the President's action should be a noti- 
fication by the Chief Justice or an Associate Justice of 
the Supreme Court of the United States to the effect 
that such resistance had occurred. Washington, pur- 
suant to the statute, issued a proclamation warning 
the conspirators and commanding them to obey the 
laws. He also appointed a Commission of Conciliation 
to confer with the conspirators. Speaking of the powers 
of this Commission Washington said, in his Address to 
Congress of November 19, 1794: 

"They were authorized to confer with any bodies of 
men or individuals. They were instructed to be candid 
and explicit in stating the sensation which had been 
excited in the Executive, and his earnest wish to avoid 
a resort to coercion; to represent, however, that without 
submission, coercion must be the resort; but to invite 
them at the same time, to return to the demeanor of 
faithful citizens, by such accommodations as lay within 
the sphere of Executive power. Pardon, too, was ten- 
dered to them by the Government of the United States 
. . . upon no other condition than a satisfactory 
assurance of obedience to the laws." 

When the Commission of Conciliation failed and 
President Washington was called upon in 1794 to take 
military action to suppress the rebellion, the warrant 
for his action, as he himself states in his message of 
November 19, 1794, was a notification, in pursuance of 
the statute of 1793, by "an Associate Justice of the 
Supreme Court of the United States that in the Counties 



150 The American Philosophy of Government 

of Washington and Allegheny, in Pennsylvania, laws 
of the United States were opposed and the executing 
thereof obstructed, by combinations too powerful to 
be suppressed by the ordinary course of judicial pro- 
ceedings, or by the powers vested in the Marshal of 
that District." The Associate Justice who signed the 
notification was James Wilson, whose long and brilliant 
service, as a member of the Continental Congress, of 
the Constitutional Convention and of the Supreme 
Court, had already made him a leading authority in all 
questions of law and politics. In all that Washington 
did he had the benefit of the advice of Jefferson, as 
his Secretary of State, of Hamilton as his Secretary of 
the Treasury, of Jay as Chief Justice, and of Randolph 
as Attorney General. Pursuant to the statute of 1793, 
Washington called out the militia of Pennsylvania, 
Virginia, Maryland, and New Jersey, forming a force 
of fifteen thousand men, so strong in proportion to the 
rebels as to be irresistible. He himself took command, 
and the governors of Virginia, Maryland, and New 
Jersey rode at the head of their divisions. With this 
overwhelming force in evidence, Washington still per- 
sisted in his attempts at persuasion and conciliation. 
When the rebellion, was quelled, partly by persuasion 
and partly by force, he saw to it that the principal 
offenders were brought to trial and sentenced; but 
before he ceased to be President he pardoned all of 
them." (See History of the United States by Bryant 
and May, vol. 4, pp. 11 8-1 21.) 

President Jackson, in exercising the executive power 
against the State of South Carolina, in 1833, when 
South Carolina threatened to nullify the protective 
tariff law of the United States, sent General Scott into 
the State with an overwhelming military force sup- 
ported by a strong naval force, with instructions to 



Judgments Against States 151 

keep his overwhelming military and naval power in 
evidence, but to use every possible effort for conciliation. 
The result was an amendment of the law which satisfied 
South Carolina without sacrificing the protective tariff 
principle. (See History of the United States by Bryant 
and May, vol. 4, pp. 306-311.) 

President Cleveland, in executing the powers of the 
United States over the mails and interstate commerce 
in the State of Illinois, during the railroad strike of 1894, 
acting under the constitutional provision requiring the 
President to take care that the laws are faithfully 
executed and under the existing statutes authorizing 
him to use the armed forces for this purpose, used a 
part of the army of the United States. His action 
was approved by resolution of both Houses of Congress 
and was held constitutional by the United States 
Supreme Court in a test case afterwards brought. 
(See The Government and the Chicago Strike, by Grover 
Cleveland; Address of Hon. Thomas M. Cooley, as 
President of the American Bar Association, in the 
Reports of the American Bar Association for 18Q4, 
p. 233; Congressional Record, Senate proceedings for 
July 11, 18Q4; House proceedings for July 16, 1894. 
See also In re Debs, 158 U. S., 564.) His action has 
been criticized on the ground that it was wholly re- 
pressive, and not directed towards conciliation; but 
it is questionable whether the resistance to the ex- 
ercise by the United States of its constitutional powers 
was not so passionate and unreasonable that concilia- 
tion was impossible and the only course open was 
one of mere repression. However this may be, the 
precedents established by Washington and Jackson 
seem clearly to show that, though force — overwhelming 
and irresistible, since only by such force can the result 
be produced with the minimum of war — is to be used 



152 The American Philosophy of Government 

by the United States, against opposition to its just and 
lawful action ; nevertheless, in all cases where the oppo- 
sition is based on reasonable grounds, this force is to 
be used only in aid of its conciliative influence. The 
failure of a State of the Union to conform to a judgment 
against it rendered by the Supreme Court would cer- 
tainly be based on some reasonable ground, and if the 
United States, acting through the President, were 
called upon to execute such a judgment, it seems clear 
that every effort of every department of the Govern- 
ment should be directed towards accomplishing the 
result by conciliation; though prudence and policy 
would dictate the use of overwhelming and irresistible 
military and naval forces, to maintain the dignity and 
majesty of the United States while engaged in its con- 
ciliative efforts. 

It is natural and proper that the Supreme Court, in 
controversies between States, looking forward to the 
difficulties in executing the judgment and the possi- 
bilities of civil war which every judgment against a 
State involves, should itself act, so far as possible, as a 
tribunal of judicative conciliation; seeking to induce 
litigating States to settle their dispute by agreement, 
and, when this proves impossible, appealing to those 
motives which should induce States of a Union to 
accept the lawful decrees of the tribunal appointed to 
adjudge their controversies. 

In the case of State of Virginia vs. State of West 
Virginia, the Supreme Court has taken a decided step 
in this direction. In its opinion in that case, the Court, 
speaking by Justice Holmes, said: 

"The case is to be considered in the untechnical 
spirit proper for dealing with a quasi-international con- 
troversy, remembering that there is no municipal code 
governing the matter, and that this Court may be 



Judgments Against States 1 53 

called on to adjust differences that cannot be dealt 
with by Congress or disposed of by the Legislature of 
either State alone. . . . 

"As this is no ordinary commercial suit, but, as we 
have said, a quasi-international difference referred to 
the Court in reliance upon the honor and constitutional 
obligations of the States concerned rather than upon 
ordinary remedies, we think it best at this stage to go 
no farther, but to await the effect of a conference be- 
tween the parties, which, whatever the outcome, must 
take place. . . . This case is one that calls for for- 
bearance upon both sides. Great States have a temper 
superior to that of private litigants, and it is to be 
hoped that enough has been decided for patriotism, 
the fraternity of the Union, and mutual consideration, 
to bring it to an end." (State of Virginia vs. State 
of West Virginia, 220 U. S., 1, 27, 36.) 

The Union has existed for one hundred and twenty- 
seven years since the Supreme Court was originally 
endowed with jurisdiction in controversies between 
States. Some of our States are thousands of miles 
distant from each other, and all are diverse from each 
other in climate, in racial composition, in tradition, and 
in their social and economic interests. Though the 
jurisdiction of the Court was not largely resorted to 
prior to the Civil War — doubtless on account of the 
acute nature of all questions relating to States' rights 
growing out of the dispute over the existence and exten- 
sion of slavery — it has been used with increasing fre- 
quency since that time. Never yet, however, has it 
been necessary to compel the execution of a judgment 
against a State, rendered by the Supreme Court in 
the exercise of its original jurisdiction. The judgment 
in the Dred Scott case alone of all the judgments 
affecting States' rights and States' interests rendered 



154 The American Philosophy of Government 

by the Supreme Court in the exercise of its appellate 
jurisdiction, has met with State opposition. The is- 
sues of the Dred Scott case are forever dead, and are 
buried under constitutional amendments. The Con- 
fidence of the people of the United States in its highest 
Court is supreme. They recognize their responsibility 
in upholding it in its unique position as the basis on 
which the whole fabric of our institutions rests. The 
States know that the Court will do justice without fear 
or favor in every case, whether of private or public in- 
terest. They feel a pride in preserving the full power and 
dignity of the great tribunal before which they appear 
as before an international court of justice. They are 
devoted to our Union. It is therefore but natural 
that decisions of the Court both in controversies be- 
tween States and in cases affecting States' rights, 
should have been voluntarily accepted; and it is but 
reasonable to hope and expect that no compulsion will 
ever be necessary in these quasi-international con- 
troversies. 



A LEAGUE OF NATIONS ACCORDING TO 
THE AMERICAN IDEA 



155 



A LEAGUE OF NATIONS ACCORDING TO 
THE AMERICAN IDEA 

Read before the Section on Social and Economic Science of the 
American Association for the Advancement of Science, at the meeting 
held in St. Louis, December 30, 19 19. Published by The Advocate 
of Peace. 

THE so-called "Covenant of the League of Nations" 
has the form of a treaty, but it is something 
different from and more than a treaty — that is 
to say, it is a constitution. It was, in fact, originally 
so called. If adopted, it would constitute a new com- 
posite body politic and corporate, which would be a 
union of States, of which the United States would be a 
member. This new body politic and corporate would 
have a political and legal personality distinct from that 
of the United States. It would have a specific name — 
the League of Nations. It would manifest its person- 
ality through a common organ, which would sit in two 
divisions — one called "the Council," and the other "the 
Assembly." To this common organ the constituent 
States would delegate specific political and corporate 
powers, thereby renouncing the exercise and wielding 
of these powers to the common organ. The act of rati- 
fying any treaty which contains this "covenant" would 
be an act of consent on the part of the United States 
to enter into a union with foreign States, and for a 
period of time more or less definite to participate and 
partially submerge its personality in this new union. 
The power which the United States would exercise in 

157 



1 58 The American Philosophy of Government 

entering into and participating in the union would not 
be the treaty power proper, but the analogous but 
vastly greater power of union. Specifically the power 
thus exercised would be the power of political union, 
the supreme phase of the power of union. 

The first question presented by the subject assigned 
for this paper — a League of Nations According to the 
American Idea — therefore is, What is the American 
Idea, and what is its effect upon the power of the 
United States to' enter into and participate in unions 
with foreign States? 

The American Idea, held by the American people 
from the foundation of the American colonies and ever 
since held by them, was formulated in the Declaration 
of Independence in these words: 

We hold these truths to be self-evident : That all men are 
created equal ; that they are endowed by their Creator with 
certain unalienable rights; that among these are life, liberty, 
and the pursuit of happiness ; that to secure these rights, 
governments are instituted among men, deriving their just 
powers from the consent of the governed. 

This statement of " self-evident truths," as is now 
generally agreed by publicists who have investigated 
its sources, is a summary and synthesis of the results 
of the work of the Protestant theologian-lawyers of the 
sixteenth, seventeenth, and eighteenth centuries. It is 
a translation of the Ten Commandments of the Old 
Testament and the Two Great Commandments of the 
New Testament, which in the Bible are expressed in 
terms of fundamental divine command and fundamen- 
tal divinely imposed duties applicable to all men, into 
terms of fundamental law and fundamental rights ap- 
plicable to all men. The translation of the Biblical 
Commandments into the fundamental law of personal 



A League of Nations 159 

conduct and the fundamental rights of men against men 
was made in 1536 by John Calvin, in the chapter on 
"The Moral Law" of his "Institutes of the Christian 
Religion." In 1594 Richard Hooker, in the first book, 
"Concerning Laws and Their Several Kinds in Gen- 
eral," of his "History of Ecclesiastical Polity," derived 
from Calvin's principles the idea of government by 
the consent of the governed and of governments as 
agents of the governed. 

Bishop Benjamin Hoadly, in 17 10, taking Hooker's 
argument as his basis, evolved the idea, in his "Essay 
on the Origin and Institution of Civil Government," 
of the unalienability of the fundamental rights of men, 
and from this thesis derived the rights of men against 
governments, and the duties of governments to secure 
the unalienable rights of men against each other. The 
political doctrines of Calvin and Hooker had become 
the basis of the liberal thought of Europe at the time 
the American colonies were founded, and were by the 
American colonists accepted as self-evident truths. 
The British and American liberals of 17 10 accepted 
Hoadly 's doctrine as completing that of Calvin and 
Hooker, and the composite doctrine of these three 
philosophers became the principles of the British Whig 
party and of the American colonists. Against the Tory 
and Imperialist reaction in Great Britain, the Ameri- 
cans insisted upon their traditional principles, making 
their own declaration of them, and successfully main- 
tained these principles by revolution. 

The words of the Declaration, when read as an expo- 
sition of the legal and political meaning of the Biblical 
Commandments, are easy to be understood. The equal 
creation of all men by a Common Creator is taken as 
the prime axiom of all law and political science. The 
fundamental duties, imposed by divine command on 



160 The American Philosophy of Government 

each man, to his Creator, to himself, and to his neigh- 
bor evidently necessitate that he should have those 
rights against all other men and all bodies of men, 
which are needful to enable him to fulfill these duties. 
Such rights are of an extraordinary character. They 
arise not by the gift of any man, but by "endowment" 
of "the Creator." These rights not having arisen from 
gift of any man, cannot be given away by any man. 
They are " unalienable." The rights which are needful 
to enable each man to perform the duties imposed by 
the Commandments are not completely specified in the 
Declaration, but it asserts that "among them" are the 
right of "life," the right of "liberty," and the right of 
"pursuit of happiness." 

The right of property is regarded as a right which is 
not fundamental, but as one which is incidental to and 
limited by these fundamental rights. Governments, 
however instituted, are declared to be bodies of men 
who derive their just powers from the consent of the 
governed. These words are taken from the formulas of 
the Roman law of agency and signify that the relations 
of governments to the governed is analogous to that of 
agency in the private law. It is not said how govern- 
ments are to be instituted, the statement being simply 
that "governments are instituted among men." The 
fundamental right of all governments is declared to be 
that of agents of the governed to "secure" the funda- 
mental rights of all men by all reasonable and needful 
means and measures. These rights being unalienable, 
governments can, in the interests of the general security 
of these rights, deprive any man of them only for will- 
ful violation of the equal rights of others, by a due 
process established by a law consistent with the funda- 
mental law and previously made by consent of the 
governed. 



A League of Nations 161 

The American constitutions are logical applications 
of the fundamental law as declared in the Declaration of 
Independence. The State is regarded not as the source 
of all law, but as being itself subject to the fundamental 
law and as a human institution or agency to secure 
human rights under this law. Governments, being bod- 
ies politic and corporate and agents of the governed, 
properly act under written powers of attorney given by 
consent of the people governed, delegating plenary pow- 
ers of agency to secure the fundamental rights of men, 
and duly limited and safeguarded in such way as to se- 
cure the faithful and efficient performance of the agency. 

By reason of the universality of this fundamental 
law, which Americans hold as the American Idea, the 
powers of all States and all governments are necessarily 
limited in all their relations, including their relations 
to other States and governments. For the protection 
of the fundamental rights of men, independent States 
and governments may wage war with other States. To 
assure the observance of the fundamental rights of 
their citizens within the jurisdiction of other States,- or 
on the high seas, which are of common jurisdiction to 
all States, they may enter into treaties with other 
States. To extend the area within which these funda- 
mental rights are secured, they may properly enter into 
unions with foreign States, of such kinds and on such 
terms as will enable them all more perfectly to secure 
the fundamental rights of all men and to extend the 
area within which these rights are in fact secured. 

Unions of States may, according to the American 
Idea, be equal unions, in which the States united are 
in the relation of equal associates, partners or coten- 
ants ; or they may be unequal unions, in which some of 
the members are in temporary subordination to one or 
all of the other members. 



1 62 The American Philosophy of Government 

The Declaration, as has been said, does not require 
that governments should be instituted by the governed, 
since it states simply that ''governments are instituted 
among men"; and hence a State which itself observes 
the fundamental law and the people of which have in- 
stituted a government by consent may institute a gov- 
ernment for peoples which have not yet attained to 
the capacity of consent or to a knowledge of the funda- 
mental law, and may unite these peoples to itself as 
States in unequal, subordinate, and tutorial union. 

Thus, according to the American Idea, a union of 
States may be effected in three ways : By two or more 
States which recognize the fundamental law and secure 
fundamental rights, mutually entering into an agree- 
ment to constitute a new union, as equal parties and 
cotenants; by such an existing union and such a State 
not of the union mutually agreeing that the State shall 
be admitted to the union as an equal partner and co- 
tenant under the constitution of the union; and by 
such a union or State uniting to itself as a State in un- 
equal, subordinate, and tutorial union a people which 
has not yet attained to the capacity of consent or to 
knowledge of the fundamental law, for the purpose of 
educating them up to the capacity for consent and to 
the knowledge of the fundamental law, in order ulti- 
mately to set them up when fully educated, as an inde- 
dependent State, capable of joining them in equal union. 

For any State the act of entering into a union with 
foreign States is of momentous importance. Any kind 
of union of States involves each State in an intimate, 
confidential, and more or less permanent and obligatory 
relationship with other States of diverse principles and 
standards. Such a relationship is particularly difficult 
and dangerous for those States which have set up for 
themselves the higher or the highest standards. The 



A League of Nations 163 

American Idea is the highest standard possible. There 
is great danger, since the United States is at present 
the sole custodian and guardian of the American Idea, 
that in a political union the American Idea might be 
submerged and lost. The more intimate, confidential, 
obligatory, and permanent the relationship is, the great- 
er is the danger to the American Idea. Nevertheless, 
the present situation of the world requires that there 
should be union of States to the greatest extent prac- 
ticable, and the United States must face the situation 
and fulfill its duty in this respect. 

In a general way, it may be said that a League of 
Nations — that is, a general union of independent States 
on equal terms — according to the American Idea would 
be one which would constitute a relationship between 
them of as intimate, confidential, obligatory, and per- 
manent a character as is consistent with each protect- 
ing itself and being protected in its right to determine 
its own action in all cases according to its own ideas, 
provided these ideas are in conformity with the uni- 
versal and fundamental law. A union of States, to be 
safe, according to the American Idea, would have to be 
under a written constitution containing delegations of 
power to appropriate common organs, and providing 
limitations and safeguards upon the exercise of the 
power. Moreover, to assure adequate protection of 
each State in a union against usurpation of power by 
the union, the constitution of each of the States of the 
union would have to contain provisions adapting the 
government of the States to any possible relationship of 
union with other States. 

Before it will be possible to have any general obliga- 
tory union of States, therefore, the political scientists 
and lawyers of the various States will have to do a great 
amount of work. First of all, the power of treaty will 



164 The American Philosophy of Government 

have to be differentiated from the power of union. They 
are, in fact, two different and distinct powers, having 
a scope and purpose different from each other and gov- 
erned, therefore, by different principles. The power of 
treaty should be confined to making agreements other 
than those constituting a personal and confidential re- 
lationship between States ; the power of union to making 
agreements and constitutional arrangements for enter- 
ing into personal and confidential relations with other 
States. Each State will have to differentiate in its own 
constitution the powers of union from the power of 
treaty and carefully safeguard the exercise of both 
powers; for under guise of exercising the treaty power 
it is possible to precipitate the State into union. 

At present there are no sufficient constitutional checks 
in the constitution of any State to prevent executives 
from entering into secret treaties, secret concerts, secret 
alliances, and secret unions. There is no consensus of 
opinion among political scientists concerning the proper 
organs of the State to exercise the power of treaty or 
the power of union. Evidently the most august body in 
each State — its legislative assembly — is the proper body 
to be intrusted by all States with the power of union. 
No consensus of opinion exists concerning the procedure 
to be observed in entering into union. Evidently the 
solemnity of the act requires in each State that the act 
be done under the most deliberate and solemn proce- 
dure. No consideration has yet been given by any 
State to the new constitutional organs and processes 
which have become necessary, now that the living of 
States in constitutional union has become a practical 
necessity and all foreign relations are taking on a 
domestic character. 

The Constitution of the United States is as defective 
in this respect as that of any other State. When it was 



A League of Nations 165 

formed, the people of the United States had just suc- 
ceeded in withdrawing by revolution from a political 
union which was not according to the American Idea, 
and they were interested in establishing their own 
States and their own union according to the American 
Idea. They had no occasion to consider the proper man- 
ner of projecting their own States and their own union 
into a greater union. Their experience had made them 
realize the danger of entering into personal and confi- 
dential relationship with foreign States, all of whom 
either derided or parodied the American Idea. It was 
evidently thought best not to suggest the possibility of 
union with foreign States, and to leave the matter to be 
settled in the future, when the occasion should arise. 

The situation of the world has not changed since the 
days of the Constitution. The political science, the law 
of nations, and the general constitutional law of the 
world are as yet as crude and undeveloped, as respects 
the power of treaty and the power of union, as they 
were at that time. The ruling classes still deride the 
American Idea or parody it in terms of the French Dec- 
laration of the Rights of Man. Now, as then, all States 
which are honestly intentioned, and the United States 
in particular, will avoid all projects of unions containing 
provisions obligating the member States to act other- 
wise than according to their judgments and consciences. 
A union on any terms less liberal than these would 
change the constitution of every State which entered 
into it and would require to be entered into by the pro- 
cess of constitutional amendment. 

The so-called Covenant of the League of Nations 
contains several provisions which are likely to result in 
infringement upon the powers of each member State 
to act according to its reason and conscience, and some 
which actually do infringe upon those powers. The 



1 66 The American Philosophy of Government 

plan of the League seems to be a composite. In part 
it seems to be taken from the plan of the ' ' Covenanted 
Leagues" of individuals, which prevailed openly and 
secretly in Europe some centuries ago, whereby the 
members bound themselves by oath to each other and 
to the ruling council to maintain and propagate a re- 
ligious faith and a form of political organization, with 
the object of placing civil government under ecclesias- 
tical control. In part it seems to be drawn from that 
applied by Spain and England in the sixteenth and 
seventeenth centuries, whereby the king in his privy 
council and in his shadowy and inefficient great council, 
in correspondence with the ducal or provincial councils, 
ruled the people of the kingdom absolutely. The cove- 
nanted leagues produced their own councils of inquisi- 
tion, absolutely ruling the members of the league by 
terror of their oaths. The conciliary system of Spain 
and England produced the High Court of the Inquisi- 
tion, and the High Court of the Star Chamber, with 
their processes of secret sentence, excommunication, 
anathema, and assassination, in contempt of the funda- 
mental law and the fundamental rights of men. 

The obligations under the Covenant of the League 
of Nations are opposed to the American Idea in at 
least the following respects: 

First. The Council and the Assembly are said to 
have the function of "advising" the member States; 
but in giving this advice they are not required to ob- 
serve the fundamental law or any principles whatever. 
The member States "covenant" to follow the "advice." 
"Advice" given by one person to another who is obli- 
gated on oath to follow the so-called "advice" is com- 
mand, not advice. When no principles are laid down 
as obligatory on the adviser, and the person advised 
binds himself to follow the advice, the power of so- 



A League of Nations 167 

called "advice" is the power of absolute command, in 
disregard of the fundamental law. 

Second. The Covenant defines aggression and wrong- 
doing in terms of warlike action, whereas the only ag- 
gression recognized by the fundamental law is that 
which occurs when States or governments deprive pe 
sons of their fundamental rights without due process 
of law. Such aggression, and such only, is an aggres- 
sion against all other States. Each State may properly 
protect itself against such an aggressor State, by war if 
necessary; and all States are in duty bound, under the 
fundamental law, to correct by their joint influences 
and strength such an aggressor State. To regard a 
State which makes war on such an aggressor State as 
the real aggressor is to render the League an agency of 
perversion and injustice. 

Third. The Covenant places the power to direct 
the activities of right-doing States and to correct the 
activities of wrong-doing States in the same body of 
men — an arrangement which in fact makes this body 
of men at once a legislature, a court, and an executive. 
Such a combination of functions in one person or body 
invariably results in absolute government. The fact 
that the League provides for a Council and Assembly 
is of no consequence, since in each of them the two 
functions are similarly confused. 

Assuming, therefore, that the proposed "League of 
Nations" is impossible according to the American Idea, 
the question arises: What kind of a league of nations, 
or general union of States, is now possible, as a matter 
of practical politics, according to this idea? It seems 
clear that the only such league is a general union of 
States for mutual counsel, in which the member States 
assume no political obligations and in which each is free 
to act according to its reason and conscience. That this 



1 68 The American Philosophy of Government 

is possible and practicable is shown by the fact that the 
United States is a member of two such unions. One of 
them is the Union of the American Republics, whose 
organ is the Pan-American Union, located in Washing- 
ton. The other is the general union of States, as yet 
unnamed, commonly called the Hague Union. This 
union is in fact, though not in law, constituted by the 
Convention for the Peaceful Settlement of International 
Disputes, formulated by the Hague conferences. Its 
organs, located at The Hague, are the Permanent Court 
of Arbitration, the Permanent Administrative Council, 
and the International Bureau. 

The union of the American Republics was initiated 
by the Congress of the United States in 1888, after the 
idea had been incubated for sixty years. By act of 
Congress delegates of the American States were invited 
to assemble at Washington, on a date fixed, as guests 
of the United States. The object of the Conference, as 
originally projected, was "to consider such questions 
and recommend such measures as shall be to the mu- 
tual interest and common welfare of the American 
States." The Congress limited it to discussion of arbi- 
tration and improvement of commercial relations. The 
invitation included a program of subjects to be dis- 
cussed, but the first was "measures that shall tend to 
preserve the peace and promote the prosperity of the 
American States." Thus a way was provided for con- 
sidering at any conference any matter deemed desirable 
for discussion by the majority. 

The Pan-American Union is a committee of continua- 
tion of the conferences. The conferences, with their 
bureau of continuation, constitute the union. A writ- 
ten constitution formed by the conferences has been 
drafted, but not adopted. The Hague Union is formed 
in substantially the same way. The President accepted 



A League of Nations 169 

the invitation to participate in the conferences. The 
Convention for the Pacific Settlement of International 
Disputes does not purport to be a written constitution 
of the Union, although it institutes the common organs. 
The lack of a continuation committee and the absence 
of a corporate name render the union imperfect. The 
program of The Hague Conferences has been limited to 
the subject of the settlement of international disputes. 
Because of this unnecessary and undesirable restriction, 
The Hague Union has accomplished little. The Union 
of the American Republics, with its more liberal pro- 
gram, has accomplished much for the general welfare of 
the States concerned. Neither of these political unions 
involves any political obligations on the part of any 
member State. The object of both unions is to reach 
an agreement of opinion, sentiment, and purpose on 
certain subjects of mutual interest, and to embody the 
agreements in formal resolutions or in international con- 
ventions, leaving the member States free to act accord- 
ing to their own consciences and judgments. 

A League of Nations, according to the American 
Idea, would undoubtedly be one modeled on the plan 
of the Union of American Republics. It would have 
for its object to hold periodical conferences "to consider 
such questions and recommend such measures as shall 
be to the mutual interest and common welfare" of all 
the States and unorganized or partly organized peoples. 
It would have as its organ a continuation committee 
of common consultation and counsel, to collect infor- 
mation, to make recommendations, and to adjust the 
program of each conference. Bach conference would, 
however, be free to consider whatever measures 
the majority should deem needful "to preserve the 
peace and promote the prosperity" of all the States 
and peoples concerned. Under such a union no po- 



170 The American Philosophy of Government 

litical obligation would be assumed. Each State would 
hold to its own idea, and in the competition of ideas 
the American Idea, by reason of its sound basis 
and its success as applied in the United States in 
bringing about peace and prosperity, would tend to 
prevail. 

By such a league of mutual counsel, under the lead 
of the United States, a new part of the law of nations, 
according to the American Idea, would gradually be 
evolved, based on the analogies drawn from the part of 
the private law which is concerned with the personal 
and confidential relations of men — the law of agency 
and trust, of copartnership, of cotenancy, of patron 
and apprentice, of guardian and ward. As the law was 
evolved, the relation of the States to each other and the 
relations of all States to the peoples not yet of full 
political capacity would tend to have less of a foreign 
and more of a domestic character, and the States 
would gradually provide themselves with organs of 
mutual correspondence with the union and with each 
of the other States, adapted to the new, difficult, and 
delicate, but highly desirable, relationship. 

When such a law of nations has been evolved and 
accepted, defining the social rights and duties of States ; 
when such institutions of mutual correspondence shall 
have been established ; when all the States have adopted 
written constitutions according to the American Idea, 
in which suitable and scientific provisions concerning 
the power of treaty and the power of union are inserted, 
a League of Nations in which each State would obligate 
itself to observe the law of nations might be possible. 
Such a league, though likely to be formed only in the 
distant future, would be according to the American 
Idea. When a formal constitution of such a league 
shall be drafted by a constitutional convention of all 



A League of Nations 171 

States, the United States may enter it without amend- 
ing its Constitution ; for the law of nations, based on the 
American Idea, is a part of the Constitution of the 
United States. 



THE POSITION OF THE JUDICIARY IN 
THE UNITED STATES 



173 



THE POSITION OF THE JUDICIARY IN 
THE UNITED STATES 

Reprinted from The Annals of the American Academy of Political and 

Social Science, September, 19 12. The Initiative, Referendum 

and Recall 

AT the present time two circumstances are directing 
public attention to the position which the ju- 
diciary holds in the American political system. 
The initiative, the referendum and the recall are extend- 
ing widely, and the prospect is that they will soon be- 
come prevalent throughout our states. It is clear that 
if these methods of controlling governmental action by 
popular vote should be carried sufficiently far, they 
might be used so as to extinguish the power which our 
courts have to treat as void any governmental action 
which is in excess of the powers granted by our written 
constitutions. At the same time that the position of 
our judiciary is thus endangered by the coming of these 
new forms of political action, its position has been 
seriously weakened, in the eyes of many of our best 
citizens, by its own action in exercising its power to 
hold laws unconstitutional. It is probably true that 
some of our courts have exercised this power in a retro- 
gressive manner; that is, in such a way as to interfere 
with the people in their proper development and prog- 
ress, and with the nation in its fair competition with 
foreign nations. Thus the position of our judiciary in 
our political system is at the same time endangered 
from without and from within. If it be true that our 

175 



176 The American Philosophy of Government 

courts are proving themselves unable properly to per- 
form the high and extraordinary functions which we 
have laid upon them, those who advocate the extension 
of the initiative, the referendum and the recall are en- 
titled to be heard with attention . If our system is sound , 
and is merely operating badly for the moment on account 
of some specific defect or ambiguity in our constitutions, 
or because we are passing through some temporary 
social or economic phase or condition, or because of 
the too great rigidity of the legal mind as now trained, 
the initiative, the referendum and the recall as remedies 
for the difficulty must be considered along with other 
possible remedies. If it be true that our system has 
broken down by reason of the inability of our courts to 
bear the burden placed on them, the next most feasible 
plan is that of ' 'responsible government" under an un- 
written constitution, as it exists in other countries, and 
to this the initiative, the referendum and recall, if 
applied in a wide sense, seem necessarily to lead. 

It therefore becomes necessary to examine the philo- 
sophical and legal basis on which our system rests, and 
to make up our minds whether our system is reasonable 
and practicable and as good as or better than any other. 
If we conclude that it is, and that therefore the func- 
tions which we have given our courts are reasonable 
and capable of being properly performed by them 
under all ordinary circumstances, it will be necessary 
to attempt to discover the reason why some of them 
have happened to make the decisions which are regarded 
as retrogressive. If we succeed in discovering these 
reasons, it will particularly be necessary to consider 
how far the initiative, the referendum and the recall 
can be used, if they can be used at all, as a means of 
remedying any aberrations of our courts in performing 
their superintending and nullifying functions. 



Position of the Judiciary 177 

An attempt will first be made, therefore, to state 
the philosophical and legal basis on which our system 
rests. The simplest way seems to be to state the propo- 
sitions of politics and law which underlie our system, 
beginning with the most fundamental and proceeding 
by successive steps to the various derivative proposi- 
tions, illustrating each, so far as space will permit, by 
reference to historical facts. 

The fundamental proposition upon which our system 
rests, as it would appear, is, that governments are the 
agents of the governed. There are, as history, experi- 
ence, and philosophy show, in the last analysis, only 
three forms of government — the patriarchal form, the 
agency form, and the imperial form. In the patriarchal 
form governmental power is conceived of as derived 
from a source external to the people governed, that is, 
from God, and is devolved from above downward upon 
subordinate officers and subjects. In the agency form, 
governmental power is conceived of as derived from 
the people governed, who delegate limited powers to 
officers who are neither above nor below the people, 
but are on an equality with the people as contracting 
parties and agents. In the imperial form, all power is 
conceived of as derived from the people governed, who 
are assumed to have conveyed all their powers to a 
ruler or government, so that the ruler or government 
thus has a power equally absolute with that of a patri- 
arch and devolves his or its power from above down- 
wards upon subordinate officers and subjects. 

When, therefore, it is said that our system depends 
upon our acceptance of the proposition that govern- 
ments are the agents of the governed, it is the same as 
saying we have chosen to adopt the agency system of gov- 
ernment and have not allowed ourselves to be subjected 
to the patriarchal system or to the imperial system. 



178 The American Philosophy of Government 

It becomes important, therefore, to inquire what is 
necessarily involved in the acceptance of this funda- 
mental proposition — that is, to inquire what are the 
fundamental principles of agency. About this there is 
no difficulty. Agency is one of the most common and 
necessary of human relations. The fundamental prin- 
ciples of agency have been settled for at least fourteen 
centuries. These principles were summed up in the 
civil law by two maxims. The first of these was, 
Obligatio mandati consensu contrahentium consistit; a 
translation of which is, "The powers of an agent are 
derived from the consent (or agreement) of the con- 
tracting parties." The second was, Rei turpis nullum 
mandatum est; a translation of which is, "There can 
be no agency to do an unjust (or wrongful) act." The 
meaning of these two maxims is, that the agent has 
no powers except those delegated to him by the prin- 
cipal and accepted by the agent in the agreement of 
agency made between them, and that any acts done by 
the agent in excess of these powers are void as to the 
principal ; that even if the agent acts within the powers 
thus delegated to and accepted by him and agreed to by 
both parties, yet if in so acting he does an unjust or 
wrongful act to any one, — as distinguished from an act 
of negligence, — the wrongful act is in excess of his 
powers, and is void as to the principal; and that even 
if the principal and the agent agree that the agent shall 
have power to do wrong or injustice, the agreement is 
void as a contract of agency and operates only to make 
the principal a wrong-doer jointly with the agent, in 
case the agent does the wrong or injustice. When we 
say, therefore, that our political system is based on the 
agency theory, we mean that our governments have no 
powers except those which are delegated to them by the 
people and accepted by the governments by acceptance 



Position of the Judiciary 1 79 

of office, and which are agreed to between the peoples 
and the governments; that even if our governments 
act strictly within the letter of the powers granted, 
they have no power in exercising those powers to do 
injustice to any one; and that if the people should at- 
tempt to delegate to any of our governments a power to 
do injustice, the attempted delegation of power would 
be void, and the governments would have no power to 
do injustice. 

The first great public document in which this theory 
was foreshadowed was Magna Charta. This great 
charter, granted by King John to the Barons in 12 15, 
was made, however, under such circumstances and was 
couched in such language that it required interpreta- 
tion. In subsequent confirmatory charters granted by 
the English kings to the people by act of parliament, 
these principles gradually became more clearly stated. 
The Reformation, by emphasizing the importance of 
the individual and his direct relationship to God, gave 
a wide extension to the idea that all institutions, in- 
cluding the institutions of government and church, are 
for the benefit of the individual; and it was a natural 
and necessary conclusion that all the persons concerned 
in the management of institutions and the institutions 
themselves were agents of those for whose benefit they 
existed. The people of Continental Europe, however, 
long accustomed to regard themselves as members of 
clans or armies, and to regard the head of their nation 
as invested with patriarchal or imperial power, were not 
able to apply this theory successfully against the oppo- 
sition of those attached by conviction or interest to the 
patriarchal or imperial theory. 

The principle that governments are the agents of the 
governed was recognized in the charter granted by the 
king in council to the Massachusetts Bay Colony in 



180 The American Philosophy of Government 

1629. By that charter it was provided that the free- 
men of the colony should meet in general court every 
three months, and that at one of these courts, called 
the court of election, all the officers of the colony should 
be elected. In the Massachusetts Body of Liberties 
of 1 64 1, this system was established by statutory pro- 
vision, and it was also arranged that officials might be 
recalled for cause at any of the general courts other than 
the court of election by majority vote upon cause shown. 

The same right of the citizens of the colonies to elect 
all their own officers was recognized in the Rhode 
Island charters of 1643 and 1663, and in the Connecticut 
charter of 1662. The colonies regarded these charters 
as the ones which really expressed the full extent of 
their political rights, though other colonial charters pro- 
vided for appointment of the governor, and in some 
cases the governor and upper house, by the King of 
Great Britain in council. 

The Continental Congress was from the outset a 
congress of agents of the colonies. When that congress 
adopted the Declaration of Independence, it committed 
the United States for all time to the agency theory. 
It was declared that governments are instituted among 
men for the benefit of the individual and primarily to 
protect and preserve each individual in the reasonable 
exercise of those attributes of life, motion, and pre- 
hension which are common to all human beings and 
which are essential to the existence of every human 
being. It was declared that each individual has a 
divine right, by reason of the fact that all are equally 
created by God with these attributes, to life, liberty 
(motion) and the pursuit of happiness (prehension). 
''To secure these (divine) rights" of the individual, the 
Declaration asserts, "governments are instituted among 
men," evidently meaning either by their consent or by 



Position of the Judiciary 181 

external force. However governments may be insti- 
tuted, whether by consent or force, the Declaration 
declares, they are the agents of the governed. The 
words are: "That to secure these rights, governments 
are instituted among men, deriving their just powers 
from the consent of the governed." This clearly means 
that governments have no power to do any unjust acts, 
and that all their powers to do just acts are derived 
from the agreement of agency between the government 
and the governed. The expression "deriving their just 
powers from the consent of the governed ' ' seems clearly 
to be a combination of the two maxims of the law of 
agency above quoted, that the powers of an agent are 
derived from the consent (or agreement) of the con- 
tracting parties, and that there can be no agency to do 
an act which is unjust or wrongful to anyone. 

The second proposition on which, as it would appear, 
our system is based, and which is a derivative from the 
first, is, that states are corporations. If governments 
are the agents of the governed, the whole organization 
consisting of the government and the governed per- 
manently operating together as one mechanism or 
body, is an artificial person or corporation. The people 
governed are in this view the members of the corpora- 
tion, and the government the officers and board of 
directors of the corporation. 

The principles of the law of corporations are those of 
the law of agency. The corporation, regarded as an 
artificial and legal person, is the agent of its members. 
Its powers are those which are agreed to between it 
and the members ; the members delegate specific powers 
to the corporation, and the corporation accepts them. 
The corporation has no powers except those delegated 
by the members, and even if it acts within the letter 
of those powers it has no power to do an act which is un- 



1 82 The American Philosophy of Government 

just or wrongful to any one. Any act of a corporation 
in excess of its powers is void. Even if the incor- 
porators or the state should attempt to give the corpo- 
ration power to do injustice to any one, such attempted 
delegation would be void, and the corporation would 
have no power to do injustice. 

Prior to the Reformation the conception of a number 
of persons united for a common purpose under a govern- 
ing body of agents selected by them, as an artificial 
person which was itself the agent of the members of 
the corporation, though not unknown, was little under- 
stood or applied. Religious, charitable and educational 
corporations existed, but cities, towns and trade-guilds 
furnished the principal examples of political or indus- 
trial corporations. So far as there was anything cor- 
responding to the modern territorial state, it was not 
conceived of as a corporation, but as a family or clan. 
The city-states and small republics of Europe, however, 
to some extent recognized themselves as corporations. 
The possibility of regarding territorial communities as 
corporations was also made manifest when the republics 
of Venice and Genoa, in the fourteenth and fifteenth 
centuries, chartered corporations for trading and bank- 
ing purposes with powers of government over the colo- 
nies of merchants on the shores of the Black and ^Egean 
seas. This practice was soon followed by France, Hol- 
land and England. It only needed that the colony 
should grow strong enough to control the corporation 
for the colony to consider itself as the corporation and 
to elect its own officers. The idea of a "common- 
wealth," or a corporation on a fixed territory having 
for its purpose the common weal of the persons there 
residing and inhabiting, was the logical result of the 
social, economic, political and religious ideas and 
theories which the Reformation brought forth. Grant- 



Position of the Judiciary 183 

ing that the development of the individual is the im- 
portant thing to be considered both in theology and 
politics, and that all institutions are for this purpose, 
it follows that it is not only the right but the duty of 
each individual to assist in molding the institutions 
which are for his benefit. By conceiving of a group of 
persons united for a common purpose as a personality 
outside of and distinct from them all, and as the agent 
of all, the institution was brought under the control 
of the group, the artificial personality being the agent 
of the group. 

At the time the colonization of New England began 
in 1 62 1, the corporation theory of the state was just 
beginning to take strong root in England. This theory 
was opposed by the ruling classes as a whole, though 
some of the nobility and a great part of the well-to-do 
farmers and professional men believed in it. Those who 
emigrated from England to America at this time did so 
because they believed that governments are and of 
right ought to be the agents of the governed, and that 
states are and of right ought to be corporations. In 
the "Mayflower Compact" of 1621, entered into be- 
tween the members of the colony which afterwards 
settled in Plymouth, Massachusetts, the colonists "cove- 
nanted and combined" themselves into "a civil body 
politic" for their "better ordering and preservation." 
The charter of the Massachusetts Bay Colony of 1629 
provided that the persons named and their associates 
should be a "body corporate and politic." The people 
of Connecticut by their "Fundamental Orders" in 1638 
"associated and conjoined" themselves as a "public 
st ate and commonwealth . " In 1 64 1 , the Commissioners 
to Regulate the Colonies appointed by the Lords and 
Commons after Charles I had refused to act with them 
on account of their insistence on the agency theory of 



184 The American Philosophy of Government 

government, granted to Roger Williams and his asso- 
ciates at Providence Plantations "a free charter of civil 
incorporation and government" by which the colony 
was given the name of "The Incorporation of Provi- 
dence Plantations." The charter of Connecticut of 
1662 declared that the persons named and their asso- 
ciates should constitute "one body incorporate and poli- 
tic," and the same language was used in the Rhode 
Island charter of 1663. In all these charters provision 
was made for election of all the officials by the members 
of the corporation, and these colonies were treated by 
the English government as English corporations. This, 
however, the colonies contested. They claimed that 
they were American corporations, and states, created 
by the voluntary act of the members, and that the 
charters granted by the English government were mere 
authentications or approvals of the voluntary union of 
the colonists. In this they were in accord with the 
trend of modern thought. More and more it is begin- 
ning to be realized that corporations are created by the 
act of the members and not by the act of the state, and 
that when the state "grants" a charter of incorporation 
its act is in legal effect merely an act of authentication 
and approval for reasons of convenience, and not in a 
true and real sense of grant of corporate powers. It is 
on account of the realization of this fact that progressive 
states now allow corporations to organize themselves 
under general laws. 

After the colonies became independent, the idea that 
they were at once states and corporations was uni- 
versally accepted and acted upon. 

The third proposition on which the American system, 
as it would appear, is based is, that corporations may 
be formed of corporations. This proposition is now a 
familiar one to us in the industrial and social as well 



Position of the Judiciary 185 

as in the political world. As a corporation is a legal 
person, there is no reason why it cannot be a member 
of a corporation. The idea that a corporation may 
with other corporations, or even with other natural 
persons, form a corporation, is now so familiar to us as 
to be a commonplace. The modern "trusts" for indus- 
trial purposes and the modern "federations" of trades 
unions or other corporations for social purposes, are 
made up of corporations as members. A holding or 
"trustee" or "federating" corporation is created by 
the combining corporations which is given federal powers 
for the common purposes. The whole organization con- 
stitutes a corporation composed of corporations. 

The conception of a corporation composed of corpor- 
ations which should also be a state, was first worked 
out or at least foreshadowed by an arrangement between 
the colonies of Massachusetts Bay, Plymouth, Connecti- 
cut and New Haven, made in 1643, when England was 
paralyzed by civil war and the colonies, surrounded by 
enemies, were thrown on their own resources. These 
four colonies entered into a "Consociation" or "Con- 
federation," declaring that they did so "for mutual help 
in our common concerns, that as in nation and religion 
so in other respects we be and continue one." The new 
federal corporation, by the name of "The United Colo- 
nies of New England," was governed by a board of 
eight commissioners, two from each colony; the board 
having power, by a three-fourths vote, to bind the 
whole federal corporation and state for certain specified 
purposes. This corporation composed of corporations 
continued in existence and operation for over thirty 
years, dealing with the common interstate concerns of 
these four colonies and with their foreign interests, 
without much interference from England. 

From 1690 forward various schemes were proposed 



1 86 The American Philosophy of Government 

for federating the American colonies so as to form one 
federal corporation or state either under Great Britain 
or in federation with that state. Among others, William 
Penn in 1697 formulated a very definite and complete 
plan. None of the plans for this purpose, however, 
was acceptable, but an arrangement was devised which, 
as it evolved, resulted in uniting the colonies and Great 
Britain into one corporation or state, which the colonies 
regarded as a corporation composed of corporations, 
to which the name "the British Empire" became 
attached. From 1696 until 1765, there existed in 
England a governing tribunal for the common purposes 
of Great Britain and the colonies which was made up 
of members of the King's Privy Council. This tribunal 
was called "the Committee of the Privy Council for 
Plantation Affairs" and was assisted by a subordinate 
body called "the Commissioners for Trade and Planta- 
tions." The whole British Empire, composed of Great 
Britain and the colonies was, as matter of fact, in 
cases arising before the tribunal, treated as if it were 
a corporation composed of corporations and as if it 
were a federal state composed of states; the state of 
Great Britain being in fact treated as the ruling state 
for the common purposes. 

The fourth proposition on which the American system 
is based, it would seem, is, that to the convenient and 
orderly existence and operation of corporations, and of 
states which recognize themselves as corporations, writ- 
ten charters or constitutions are necessary. This is 
because limitations of power can be made effective only 
as they are carefully formulated in writing and pub- 
lished so as to be known to all concerned. As corpora- 
tions are by their definition artificial persons and agents 
with limited powers, and as their officers are agents 
oftentimes linked together in a complex series of opera- 



Position of the Judiciary 187 

tions where there is a great division of labor, it is essen- 
tial to their orderly and convenient management that 
these limitations of power should be formulated in 
written constitutions. The more complicated the cor- 
poration the more necessary the written formulation of 
the limitation of powers. Hence a written constitution 
is even more necessary to a federal state, which is com- 
posed of states, than to a compact state. 

The discussion that was carried on prior to the 
American Revolution concerning the limitations of the 
powers of Great Britain and the colonies as constituent 
elements of the great state and corporation called "the 
British Empire," called attention to the necessity of 
written constitutions. It had long been recognized 
that corporations for industrial or social purposes could 
not conveniently exist except under written charters. 
Cities and towns also had discovered the necessity of 
having written charters. All the American colonies 
except Virginia and New York were organized under 
charters recognizing more or less completely their cor- 
porate character, and the colonies had thus learned to 
appreciate the convenience of having their fundamental 
law contained in one document. The study of the rela- 
tions between Great Britain and the colonies brought 
out the fact that the complex corporate and political 
unity called "the British Empire" was under a consti- 
tution of its own quite different from that of Great 
Britain. It also brought out the fact that there was a 
great difference of opinion as to what the provisions of 
the constitution of the British Empire were or ought 
to be. All Americans agreed that the empire was an 
aggregation of states under the headship of Great 
Britain, and that the powers of each of the constituent 
states were limited in such a manner that the whole 
British Empire could hold together and operate for the 



1 88 The American Philosophy of Government 

common good. It was pointed out by writers on both 
sides of the water that so large and complex an or- 
ganization of states ought to exist under a plan of or- 
ganization carefully formulated and written down in one 
document, so as exactly to express the limitations of the 
various agencies composing the government. The first 
act of the Continental Congress after deciding upon a 
declaration of independence, was to set about making a 
written constitution for the union of the colonies as 
states and corporations. All the colonies except Con- 
necticut and Rhode Island, in accordance with the 
suggestion of the Continental Congress, adopted new 
written constitutions. Connecticut and Rhode Island, 
having power under their colonial charters to elect 
all their own officers, adopted their colonial charters as 
their state constitutions, and lived under them for 
many years after they became states. 

The fifth proposition on which the American system 
is based is, as it would seem, that in order to keep the 
various agencies in a corporation working within their 
proper spheres and in harmony with each other, there 
must be somewhere in the organization a superintending 
agency with power to nullify the action of all other 
agencies which is in excess of the powers which these 
agents ought properly to exercise. Where a corpora- 
tion is composed of corporations and the constituent 
corporations are thus at the same time agencies of 
government and members of the larger corporation, 
the necessity of having some superintending and nulli- 
fying power to secure the proper working of the com- 
plicated mechanism becomes still more evident. 

In the prevailing thought of the Americans, the king 
in council was the agency in the British Empire in 
which this superintending and nullifying power was 
lodged. The majority of the Americans regarded the 



Position of the Judiciary 189 

Lords and Commons of Great Britain as the local legis- 
lature of Great Britain, and insisted that it was the 
duty of the king advised by his privy council, as an 
arbitral and judicial tribunal, to use his veto power as 
a nullifying power for the purpose of nullifying even 
acts of parliament which this tribunal should find to 
be in excess of the powers which Great Britain ought 
properly to have exercised as a constituent state and a 
governmental agent of the British Empire. It was be- 
cause they considered that George III had failed and 
refused to exercise this superintending and nullifying 
power, as the superintending and nullifying agency of 
the whole empire, and had united with his ministers 
and the lords and commons in attempting to assume 
patriarchal or imperial power in the federal state called 
"the British Empire,'' that he was held responsible in 
the Declaration of Independence for the disintegration 
of this federal state. 

The sixth proposition on which, as it would appear, 
the American system is based, is, that the superintend- 
ing and nullifying power is an agency of a judicial, 
and not of a legislative or executive nature; and that 
therefore, although it is an extraordinary kind of judic- 
ial power, it may more safely be committed to the 
judiciary than to the executive or the legislative or to 
an extraordinary agency outside of the legislative, the 
executive and the judiciary. Such an extraordinary 
agency might easily pervert a superintending and nulli- 
fying agency so that it would become in fact a patri- 
archal or imperial power. 

In the first written federal constitutions adopted by 
the American Union, it was sought to avoid the neces- 
sity of a superintending and nullifying tribunal by 
establishing between the colonies merely a permanent 
alliance or confederation advised by a Congress of 



190 The American Philosophy of Government 

ambassadors. The Declaration of Independence was 
itself in part a written constitution of union of the 
American states, for in it they described themselves as 
"The United States of America"; but as it contained 
no specification of the powers which the union, as dis- 
tinct from the states, should exercise, it created only a 
permanent alliance or confederation. The articles of 
confederation specified the powers of the union; the 
powers granted to congress being those which before 
the Revolution the king in council had exercised over 
the colonies as the federal head of "the British Empire" 
with their consent. These articles made no provision 
for any superintending and nullifying agency. They, 
however, denied to the union any power to lay or collect 
taxes, or to regulate interstate or foreign commerce, 
or to acquire or govern colonies. As these were the 
powers respecting the exercise of which in the empire 
Great Britain had made excessive claims of power, and 
out of which the dispute between Great Britain and 
the colonies had arisen, it seems to have been hoped 
that, by withdrawing these powers altogether from 
congress, disputes regarding the limits of powers would 
be avoided, and thus no superintendence or nullification 
would be required. 

The Constitution of the United States, adopted in 
1787, conferred these three disputed powers on the 
union and provided a method for nullifying acts done 
in excess of power by the union or by the states. This 
nullifying power as respects the limitations placed upon 
governments and states by that constitution, was vested 
in the Supreme Court of the United States in the last 
instance, though permitted to be exercised by all the 
courts subject to the final decision of the supreme court. 
It was thus recognized as a judicial power, though of an 
extraordinary kind. This was logical ; for the question 



Position of the Judiciary 191 

whether an agent, a governmental officer, a corporation 
or a state has exceeded his or its powers, can best be 
decided by the hearing and examination of evidence 
and the application of legal principles. 

The seventh proposition on which the American sys- 
tem, as it would seem, is based, is that in order to 
enable the judiciary to exercise its superintending and 
nullifying agency to prevent excess of powers of the 
other agencies of government, it is necessary that the 
constitution of the federal state should be made the 
supreme law of the federal state, and that the constitu- 
tion of each state should, subject to this supreme law, 
be the supreme law of the state. By such an arrange- 
ment, this extraordinary power of the courts is exercised 
as a part of their ordinary judicial functions in hearing 
and adjudicating cases between ordinary parties liti- 
gant, and there is little possibility that power exercised 
in this non-spectacular manner will ever be given any 
spectacular setting so as to lead to the popular belief 
that the depositaries of this power are really exercising 
a patriarchal or an imperial power. The citizen, ob- 
serving the courts laboriously investigating facts and 
basing their decisions upon subtle distinctions of law 
drawn from experience and reason, is not likely to 
regard the courts as patriarchs or emperors. The safety 
and permanence of the whole agency system of govern- 
ment in states may, indeed, be said to depend upon the 
acceptance by the people of the proposition that the 
limitations of the powers of their governmental agencies 
are under a supreme law established by the people 
and interpreted like other law by the courts. Only 
through the prevalence and acceptance of this idea can 
there be assurance at all times against the recrudescence 
of patriarchal or imperial power. 

The courts in the United States were, by the consti- 



192 The American Philosophy of Government 

tution of 1787, given jurisdiction to superintend and 
nullify all action of any of the governments limited by 
the Constitution of the United States by means of a 
provision which made the constitution, and the acts of 
congress in conformity with the constitution, "the su- 
preme law of the land." Under this provision the con- 
stitution is applied by the courts, with final appeal to 
the supreme court, in the same manner as other law, 
except that it is treated as supreme so that any govern- 
mental action inconsistent with its provisions is void. 
In the same manner, the constitution of each state is 
its supreme law, subject to the Constitution of the 
United States which as to the limitations upon govern- 
mental power contained in it is supreme over all law 
throughout the United States. 

Enough has been said, it is hoped, to have satisfied 
the reader that our form of government is based on the 
propositions that governments are the agents of the 
governed; that states are corporations; that federal 
states are corporations composed of corporations; that 
in all corporations written constitutions are necessary 
to determine the limitations of the powers of the officers 
of the corporation and of the corporation itself; that 
in the case of corporations composed of corporations, 
written constitutions are still more necessary to fix the 
limits of the complex agencies; that within every cor- 
poration, and especially within every corporation com- 
posed of corporations, there must somewhere be vested 
a superintending and nullifying power and agency, 
which can promptly and effectively nullify all action 
done in excess of power, so as to keep the whole mech- 
anism and the whole artificial personality working to 
its full capacity and effectiveness; that it is safer, as 
preventing the possibility of the recrudescence of patri- 
archal or imperial power, to vest this superintending 



Position of the Judiciary 193 

and nullifying power in the judiciary rather than in the 
legislative or the executive, or in any extraordinary 
governmental agency outside of and distinct from the 
legislative, the executive and the judiciary; and also 
more logical, since the superintending and nullifying 
power is judicial in its nature; and that it is necessary, 
in order that the judiciary should exercise this great 
power, that our written federal constitution should be 
the supreme law for federal purposes and our state 
constitutions supreme law for state purposes. 

Our system is therefore just, scientific and practical. 
It is more just, more scientific and more practical than 
any other system; for none would now assert that the 
patriarchal or the imperial theory of government is 
more just, more scientific and more practical than the 
agency theory, and all other systems are based on 
compromises between the agency theory and the patri- 
archal or imperial theory. 

It therefore remains to attempt to discover in what 
respect our system is at the present time operating 
badly, and to attempt to suggest a remedy; and par- 
ticularly to inquire whether the remedy can be had 
by the use of the initiative, the referendum or the 
recall. 

A constitution of a corporation or of a state must 
evidently deal with four different subjects: 

First. The organic structure of the corporation or 
state — that is, the relations which the parts of the 
mechanism bear to each other. 

Second. The relations between the governing board 
of the corporation or the government of the state, and 
the individuals composing the corporation or state as 
members of the corporation or citizens. 

Third. The relations between the corporation or 
state and its members or citizens, and those corpora- 
13 



194 The American Philosophy of Government 

tions or states with which it is federally or permanently 
connected or united, and their members or citizens. 

Fourth. The relations between the corporation or 
state and its members or citizens, and those corpora- 
tions or states with which it is not federally or per- 
manently connected or united, and which are "foreign" 
to it, and their members or citizens. 

The present defects in the working of our system are 
not with respect to the relations described in the first, 
third or fourth specification. There is no complaint 
of the rulings of our courts in constitutional cases in- 
volving the relations between the different parts of our 
state and federal governments or between the Union 
and the states as parts of the mechanism of the Union, 
or involving our relations with our protectorates or 
dependencies, or with foreign nations, or with the citi- 
zens of any of these countries, or between our citizens 
and any of these countries or their citizens. The 
present complaint arises exclusively under the second 
specification. It is charged that our courts have ruled 
erroneously in constitutional cases involving the rela- 
tions between the state and its citizens and inhabitants. 
In nearly all the cases where the courts are alleged to 
have made these erroneous constitutional decisions, 
their decisions have been made under constitutional 
provisions which declare that "no person shall be de- 
prived of his life, liberty or property without due 
process of law." 

On examining the decisions, it will be found that this 
constitutional provision has been gradually growing in 
importance in the estimation of the courts, until now it 
is regarded as furnishing a general test of the constitu- 
tionality of governmental action. In so interpreting 
this provision, it seems that the courts have erred. 

By referring to the Petition of Right of 1627, pre- 



Position of the Judiciary 195 

sented by the lords and commons of England to Charles 
I, where the expression "due process of law" first occurs 
in a constitutional document, we shall find that these 
words are there used exclusively as applied to cases 
where a man's life, liberty or property is taken away on 
account of his alleged wrong-doing. The expression 
occurs in that petition only in the following statement : 

"That no man, of what estate or condition that he be, 
should be put out of his lands or tenements, nor taken 
nor imprisoned nor put to death, without having been 
brought to answer by due process of law." 

As respects the receipt by the government of the 
property of good citizens as taxes to be used for the 
public benefit, the Petition of Right does not use 
the expression "due process of law," but the word 
"consent." That provision reads: 

"That [the people of England] should have this 
freedom, that they should not be compelled to contrib- 
ute to any tax, tallage, aid or other like charge not set 
by common consent in parliament." 

Lord Coke, who is often wrongly quoted as authority 
for using the "due process of law" provision as a test 
of the validity of all forms of governmental action, held 
that quite a different test ought to be applied. In 
Bonham's Case (8 Coke, H5-n8a), decided in the 
court of common pleas in 1611, while Coke was chief 
justice, he said, delivering the opinion of the court : 

"When an act of parliament is against common right 
and reason, or repugnant, or impossible to be performed, 
the common law will control it and adjudge such act 
to be void." 

His successor in the chief justiceship, Hobart, in the 
case of Day v. Savadge (Hobart, 87), decided about 
1620, said, in delivering the opinion of the court: 

"An act of parliament, made against natural equity, 



196 The American Philosophy of Government 

as to make a man judge in his own case, is void in itself ; 
for jura naturae sunt immutabilia, and they are leges 
legum (for the laws of nature are immutable, and they 
are the laws of laws.) " 

As late as 1701, Holt, Chief Justice of the Court of 
King's Bench, in the case of City of London v. Wood 
(12 Modern, 669), approved Lord Coke's statement in 
Bonham's case. 

The American lawyers from the period of the Stamp 
act onward, led by James Otis, adopted the view of 
Coke. 

John Adams, in his autobiography, gives an account 
of the drafting of the first resolutions of the Continental 
Congress by the committee of which he was a member. 
One question, he tells us, was whether the resolutions 
should declare the powers of Great Britain over the 
colonies to be limited by "the British constitution and 
our American charters," or whether they should "recur 
to the law of nature" as the basis of their claim to have 
rights as the governed, against Great Britain as their 
supreme, but legally limited, government. He says that 
he was "very strenuous for retaining and insisting on" 
the law of nature. The resolutions as adopted declared 
that the limitations of the governmental power of Great 
Britain as respects the colonies and their inhabitants 
existed "by the immutable laws of nature, the principles 
of the English constitution, and the several charters or 
contracts." It was natural, therefore, that in the Dec- 
laration of Independence our ancestors should have 
based their claim to be absolved from their former 
political connection with Great Britain, and to be inde- 
pendent states, on "the laws of nature and of nature's 
God"; and that they should have asserted that govern- 
ments, however instituted, can only exercise such 
powers as are just, as agents of the governed. Not to 



Position of the Judiciary 197 

have inserted this limitation that the powers exercised 
by government must be "just" would have been to 
have rendered the Declaration inconsistent with their 
previous contention, and would have made the framers 
justly chargeable with bad faith. Having insisted in 
the controversy with Great Britain upon the universal 
principle that the powers of all governments are limited 
to those which are expressly delegated and which are 
just, it was logically obligatory upon them to adhere 
to this general principle in the Declaration of Inde- 
pendence and to make this principle applicable to every 
government and state which should ever be formed by 
the American people. That they intended to do so, and 
that they used apt words to do so, there can be no doubt. 

The true limitations upon the powers of government 
in its relations with the governed, when its action is 
directed to the general welfare as a trustee for all, and 
not to the punishment or correction of an individual or 
a class of individuals as a guardian for the weak and 
deficient, are, it would seem, to be found in the preamble 
of the Declaration of Independence and in the preamble 
of the constitution. The Declaration is a federal con- 
stitution, since by it was formed the first union of the 
states. It is at the present time, in so far as it states 
general principles, our fundamental federal constitution. 
It has never been rescinded, nor in any way amended. 
It is not inconsistent with the constitution of 1 787. The 
constitution of 1787 recognizes the permanence of the 
principles set forth in the Declaration of Independence, 
and of those set forth in the Articles of Confederation 
except so far as they are inconsistent with the constitu- 
tion, by declaring that its purpose is "to form a more 
perfect union." 

In the early constitutions of the states and in the 
fifth amendment of the Constitution of the United 



198 The American Philosophy of Government 

States, the expression "without due process of law" 
was used in the same connection as in the Petition of 
Right — that is, as limiting the power of the government 
to take away the life, liberty or property of the indi- 
vidual only when the governmental action is directed 
against an individual for alleged wrong-doing. In this 
connection the words meant that a person charged in 
court by another person with wrong-doing, or threat- 
ened by governmental action with loss of life or liberty 
or confiscation of property for alleged wrong committed 
against the state, could not be held by the government 
to be civilly liable and could not be penalized criminally 
except according to a proper procedure established in 
advance by law and according to principles of law duly 
formulated. In the fourteenth amendment, however, 
which was adopted after the Civil War, for the purpose 
of giving the federal government power to prevent the 
southern states from reinstituting slavery by indirect 
means, the provision that no state shall "deprive any 
person of life, liberty or property without due process 
of law" was inserted in a connection where it might 
equally well be understood as covering cases where the 
state receives the property of honest citizens by way of 
taxation, or makes general regulations for the public 
good, and where it is seeking to take away life, liberty 
or property from persons who are charged with wrong- 
doing. The courts, under the leadership of the Supreme 
Court of the United States, have construed this pro- 
vision as applying to all kinds of governmental action. 
In so holding it seems that the courts have clearly erred ; 
since the expression "without due process of law," as 
applied to all kinds of governmental action other than 
that whereby the government seeks to take away the 
life, liberty or property of the individual on the ground 
that he is a wrong-doer, is clearly meaningless. 



Position of the Judiciary 199 

As the natural result of the attempt by the courts to 
use the words ' 'without due process of law" as the gen- 
eral test of the validity of all governmental action when 
these words have no meaning except as applied to one 
kind of governmental action, our decisions in constitu- 
tional cases involving the relations between the govern- 
ment and the individual have become illogical and 
confused. The attempt to draw a meaning out of an ex- 
pression which is meaningless because used in a wrong 
connection must necessarily lead to confusion. As the 
courts have applied an obscure and unreasonable test 
in the greater part of the cases involving the relations 
between the government and the governed, they have 
naturally fallen into the way of deciding these cases 
according to the personal or partisan notions of the 
judges. 

The true test, when laws passed in the exercise of the 
taxing power or the police power are claimed to be 
unconstitutional on general grounds, is, it would seem, 
not whether they comply or not with the "due process 
of law" provision, but whether or not they are "just." 
In applying this test, the courts will of course not hold 
an act of the legislature not to be "just," unless it is 
so clearly "against common right or reason, or repug- 
nant, or impossible to be performed," or "against natu- 
ral equity" that for the court to uphold it would be to 
make the court an instrument of injustice instead of a 
court of justice. Thus in cases of policy, where no 
moral right or wrong was involved, the legislature would 
finally determine the rate of social and economic 
progress; the courts following the legislature. 

In the present situation, therefore, when our judiciary 
is under criticism, it seems that if the fourteenth 
amendment is agreed to be so worded that it requires 
the courts, in all cases involving the relations between 



200 The American Philosophy of Government 

the government and the governed, to decide by the 
test that the state shall not deprive the individual of 
his life, liberty or property without due process of law, 
that amendment ought to be amended. It would be 
sufficient if the words "for alleged wrong-doing" were 
inserted before the words "of life," so that the phrase 
would read "nor shall any state deprive any person, on 
account of alleged wrong-doing, of life, liberty or prop- 
erty, without due process of law." In case of govern- 
mental action aimed at individuals or corporations on 
account of alleged wrong-doing, it would then be the 
duty of the courts to see that the alleged wrong-doer 
had a fair hearing and trial under an appropriate process 
established by law, and according to principles of law 
duly established. 

But perhaps no such amendment is necessary. It 
may be considered that the fourteenth amendment was 
not intended to have the broad signification which the 
courts have attached to it, and that the natural mean- 
ing to be given to the words above quoted — especially 
as the words "deprived of his life, liberty or property" 
are used, which almost necessarily mean a taking away 
on account of wrong-doing — is the restricted one ac- 
cording to which the provision in which these words 
occur is confined to governmental action directed 
against alleged wrong- doers. If so, the words are 
ambiguous, and the courts can by their own construc- 
tion give the amendment its proper meaning. 

The provision denying to governments the power to 
deprive individuals of their life, liberty or property 
without due process of law is one which occurs in most 
of the state constitutions, and the state courts have 
followed the United States Supreme Court in construing 
it as applying to all forms of governmental action by 
state governments. If by constitutional amendment or 



Position of the Judiciary 201 

by construction of the United States Supreme Court 
the restricted meaning above mentioned is given to this 
provision, the effect would be to induce the state su- 
preme courts to restrict the meaning of these words in 
the state constitutions, and the confusion which has 
been caused by attaching too wide and general a mean- 
ing to this constitutional provision should, it would 
seem, tend to cease. 

If the courts should thus by a proper construction of 
the words "due process of law" be put in the position 
where they would have to apply specific and easily 
understood limitations of governmental powers as tests 
in exercising their superintending and nullifying power, 
with the addition that they were obliged to nullify any 
governmental action that was clearly not "just," it is 
probable that there would not be much dissatisfaction 
with their constitutional decisions. If the issue was as 
to the application of a specific and plainly worded con- 
stitutional limitation, there would not be room for much 
personal or partisan reasoning by the judges. If the 
issue were as to whether a particular governmental 
action was "just," the court would hold such action 
unconstitutional only in case it was clearly absurd or 
impossible, as being opposed to the natural laws of the 
material universe, or in case it was clearly wrongful as 
being opposed to the fundamental principles of social 
justice formulated in the Ten Commandments of the 
Old Testament and in the Two Commandments of 
the New Testament. The natural laws of the material 
universe are necessarily fundamental law ; and it is not 
too much to say that the Great Commandments are 
now accepted, in theory at least, throughout the society 
of nations, as fundamental law. Courts in determining 
whether governmental action was or was not just 
would in fact be sitting not as state or national courts, 



202 The American Philosophy of Government 

but as courts of the society of nations; for the same 
principles which would determine whether a certain 
governmental action was unjust in one nation, would 
equally control in a similar case in every other nation, 
and any court in deciding such a case would in a very 
true sense be applying the constitutional law of the 
society of nations as the supreme law. 

In passing it may be said that this conception of our 
national courts' sitting as courts of the society of nations 
is not a fanciful suggestion, but is a practical political 
fact. More and more statesmen and publicists every- 
where are realizing and accepting as a fact of practical 
politics that there is a society of the peoples, states and 
nations of the world, which for want of a better name 
we call "the society of nations"; that this society is a 
corporation composed of corporations and a federal 
state, having a federal government which is the agent 
for the common purposes of the peoples, states and 
nations governed; that this federal government does 
not consist of a body of definite persons, collected to- 
gether in one place as the capital, and is not elected on 
the representative basis, but is made up of nations, 
states, governmental officers of nations and states, and 
publicists, scattered over the face of the earth, and is 
carefully arranged so as to protect the rights of the 
weaker states and nations and of all minorities; that 
this inclusive society and federal state has by various 
legislative methods formulated and is still formulating 
its own federal constitutional, statutory and customary 
law, commonly known as "international law"; and that 
it is daily enforcing its federal law by various executive 
methods and particularly through the nations and 
states as its executive organs; and that therefore na- 
tional courts, in determining what is "just," are not at 
liberty to consider alone what is regarded as just by 



Position of the Judiciary 203 

the "common juridical conscience" of their own nation/ 
but must also consider what is regarded as just, and 
treated as fundamental law, by the "common juridical 
conscience" of the society of nations. 

We may, therefore, it would seem, reasonably hope 
that by making all our special constitutional limitations 
clear and distinct and easily understood, — which we 
shall do by giving the "due process of law" provisions 
a restricted meaning so that they will apply only where 
governmental action is directed against individuals as 
alleged wrong-doers, — and by making the only general 
test of constitutionality the test of "justice," — regard- 
ing "justice" as that which is considered just by the 
"common juridical conscience" of the society of nations, 
— the courts will, as a general rule, act in a manner 
satisfactory to the enlightened intellect and conscience 
of the people. But when all precautions are taken it 
may still happen that the courts, as the superintending 
and nullifying agencies of our states as corporations, 
will occasionally err and will themselves exceed their 
powers and act unconstitutionally. The question arises, 
what shall be the remedy in such a case. 

One remedy which has already been frequently ap- 
plied, is to amend our constitutions so as to recall the 
erroneous decisions and validate future governmental 
action of the kind which the courts have wrongly 
nullified. But such a process of amending our con- 
stitutions is dangerous to our system. Our written 
constitutions by such amendments are ceasing to be 
statements of fundamental principles and are becom- 
ing confused legislative codes. Thus by this method of 
attempting to remedy the difficulty our written con- 
stitutions are being indirectly destroyed. It is neces- 
sary, therefore, to consider other possible remedies. 

If we agree that states are corporations, the remedy 



204 The American Philosophy of Government 

to be applied where the courts of a state exceed their 
powers to superintend and nullify other agencies and 
nullify wrongly, is the same as would be applied in a 
corporation if a superintending and nullifying official 
in a corporation should wrongly exercise his powers of 
superintendence and should nullify action which he 
ought to have allowed to stand as valid. The members 
of the corporation, while indulging in every presump- 
tion in favor of the superintending and nullifying offi- 
cial, and relying, as reasonable men ought to do, upon 
his expert judgment to the fullest extent possible, 
would, if they were satisfied beyond a reasonable doubt 
that he had nullified action of an agent which he ought 
not to have nullified, either remove him by vote of the 
majority of the members or validate by similar vote 
the action which he purported to nullify. 

This seems to be what is meant by "the recall of 
judges" and "the recall of decisions," as these expres- 
sions are now used by those who believe our courts 
have erred. The recall of judges is, however, used in 
two senses which it is necessary to distinguish from 
each other. There is a recall of judges for incompe- 
tence, and a recall of judges for having participated in 
constitutional decisions by which governmental action 
has been wrongly nullified. The recall of judges for 
incompetence, and the recall of judges for participation 
in constitutional decisions which are erroneous, stand 
on entirely different grounds. Every state or nation 
ought to have some orderly method of removing judges 
for incompetence. Impeachment does not meet such a 
case, since impeachment is permissible only where moral 
turpitude can be proved. The best method of removal 
seems to be by action of the legislature addressed to the 
executive, though there appears to be no serious objec- 
tion to a referendum for this purpose if the people prefer 



Position of the Judiciary 205 

it, and it happens to work well in a given state or nation. 
The recall of judges for participation in constitutional 
decisions in which governmental action is erroneously 
nullified, or the recall of these decisions, must be by 
referendum, if at all; though the referendum need 
not actually remove the judges or actually reverse 
the decision. That the people assembled may exercise 
this right without necessarily destroying our system is 
evident. That, in extreme and clear cases, they not 
only may but ought to exercise in some manner the 
right to validate governmental action wrongly nullified 
by the courts is also evident. That this is a dangerous 
power to be exercised by popular vote is also evident, 
since it is only in extreme and rare cases that the 
popular judgment would be likely to be more correct 
than the expert judgment of the courts. If exercised 
frequently and if exercised wrongly, it would tend to 
unsettle our whole system and in the end would prob- 
ably destroy it. But that a power is dangerous to 
exercise, is no reason why it should never be exercised. 
That it is dangerous is a reason for using caution when 
the power is exercised, and the more dangerous it is the 
greater ought to be the caution in exercising it. 

The recall of judges and the recall of decisions, when 
used to correct aberrations in the constitutional action 
of the courts, should undoubtedly be used rarely, and 
only in extreme cases and as a last resort; and even 
then with caution and under the most careful safe- 
guards. It should always be remembered that the de- 
cision of a court is final only in the case decided, and 
is never final as settling legal principles; that it is 
generally the part of wisdom to trust to experts in 
matters which are complicated and which can be fully 
mastered only by experts who give their lives to learn- 
ing the art; that the court as an institution is ever- 



206 The American Philosophy of Government 

lasting; and that though one bench of judges may err, 
another bench may correct the error, so that the court 
as an institution is never likely to be wrong except 
temporarily. Considering the dangers of the recall of 
judges or the recall of decisions, it seems that it is on 
the whole safer, in all but the most extreme and rare 
cases, to trust to the courts correcting their own errors 
by the pressure of public opinion ; never allowing them 
to forget, however, that they are only the superintend- 
ing and nullifying agencies of the state as a corporation, 
and that the people of the state as members of the cor- 
poration have the right, which they can and will exer- 
cise in the last resort, to annul unconstitutional action 
of the courts as such superintending and nullifying 
agencies and to validate the nullifying action, or, at 
their option, to remove the judges who have thus erred. 
To grant that the courts in the United States have 
powers not subject to control by the people in the last 
resort is to make the courts the American patriarchs or 
emperors. Like every other governmental agency, our 
courts, whatever may be the functions they exercise, 
are the agents of the governed and form a part of the 
managing boards of the states and of the nation as 
corporations. Though they have greater functions than 
the courts of foreign countries, they have a responsi- 
bility to the people which prevents the abuse of these 
great functions. There appears no likelihood that there 
will ever be such a use of the initiative, the referendum 
or the recall as will interfere with the performance by 
our courts of these functions ; and there is much in the 
movement for recall of judges and recall of decisions 
to encourage the belief that sturdy manhood still per- 
sists throughout the American jurisdiction, demanding 
that governments shall be and remain the agents of the 
governed. 



INTERNATIONAL LEGISLATION AND 
ADMINISTRATION 



J07 



INTERNATIONAL LEGISLATION AND 
ADMINISTRATION 

Address delivered at the National Conference on Foreign Relations 
of the United States, held under the auspices of the Academy of Po- 
litical Science at Long Beach, N. Y., May 29, 1917. 

Reprinted from Proceedings of the Academy of Political Science in the 
City of New York, July, 191 7 

A SURVEY of international politics discloses two 
great facts. The first is, that the nations have 
always refused to consider any plan for institut- 
ing an international government endowed with physi- 
cal force. The second is, that the nations, by the Hague 
Convention for Pacific Settlement of International 
Disputes, ratified by practically all of them, besides 
establishing the judicial part of an international organi- 
zation, legitimized and recommended international con- 
ciliation of disputant or belligerent nations by any 
nation not engaged in the dispute, through good offices 
and mediation, and also recommended the institution 
of commissions of inquiry by disputant nations to settle 
the dispute as agencies of international conciliation. 

This second fact is of profound importance; for the 
Convention for Pacific Settlement is, so far as it goes, 
a written constitution of the society of nations. By it 
the united nations instituted an international judicial 
organ, the Permanent Court of Arbitration ; and certain 
administrative organs ancillary to the court, the Per- 
manent Administrative Council and the International 
Bureau. By it mediating nations, and commissions of 
14 209 



210 The American Philosophy of Government 

inquiry instituted by disputant nations, were recog- 
nized as international conciliative agencies in the par- 
ticular case. By it the processes of action of these 
international agencies and organs were prescribed. By 
the Draft Convention for a Judicial Arbitration Court 
— otherwise called the Permanent Court of Arbitral 
Justice — the Second Hague Conference instituted an 
additional international organ and prescribed its pro- 
cesses ; and when the nations agree concerning the man- 
ner of selecting the judges of this new international 
court and thus put the Draft Convention into effect, 
the Draft Convention will in fact form an additional 
part of the Convention for Pacific Settlement. The 
Convention for Pacific Settlement is, however, an in- 
complete written constitution, because it fails to insti- 
tute any international legislative organs or processes 
whatever, and because the administrative organs insti- 
tuted by it, being only ancillary to the judicial organ, 
are inadequate for general international administrative 
purposes. In spite of the incompleteness and inade- 
quacy of the Convention for Pacific Settlement, how- 
ever, the fact that it exists, as the substantially unani- 
mous act of all nations, is perhaps the most momentous 
circumstance in human history. When the substan- 
tially unanimous ratification of this convention was 
completed, in the summer of 1907, the nations ceased 
to be a mere unorganized community, and became an 
organized voluntary and co-operative society and union 
for judicial purposes — a verband, as the German writers 
describe it; or a consociation, as we might call it. 
(See "Der Staaten verband der Haager Konferenzen," 
by Professor Walther Schiicking of the University of 
Marburg, published in 19 12.) 

The nations were not ready, at the time of the Hague 
Conferences, to consider the question of an improved 



International Legislation 211 

arrangement for international legislation and adminis- 
tration. It was not even discussed in 1899 or in 1907. 
The ten years that have nearly elapsed since the Second 
Hague Conference have, however, been years of won- 
derful development and progress. This universal war 
has clarified many things that before were unseen or 
seen only darkly. The question of making an improve- 
ment in international legislation and administration is 
now one of practical politics. It is clear that such an 
improvement must occur through the amendment and 
revision of the Convention for Pacific Settlement so as 
to add to it the proper institutions for international 
legislation and administration, consistent with the 
existing judicial, administrative and conciliative insti- 
tutions established by it and conforming to the general 
spirit of the convention and the fundamental principles 
on which it is based. 

The first question is, ought an international adminis- 
trative body to be itself empowered to use physical 
force to control the nations; that is to say, ought a 
physical-force international government to be insti- 
tuted by the nations to govern them for the common 
purposes? If the nations delegate to a physical-force 
government the power to govern them, they must also 
delegate to it the power to tax for the common purposes 
and the power to raise, support, and wield an interna- 
tional army, navy, and police. The power to tax, as 
has been well said, is the power to destroy. 

The question whether a physical-force international 
government is politically practicable as tending to just 
government, almost answers itself in the negative; since 
all the nations have persistently, unanimously, and 
recently refused even to consider such a form of gov- 
ernment. Yet, as such an international government is 
advocated by many, it will be desirable to analyse the 



212 The American Philosophy of Government 

reasons why it is impracticable, and to satisfy ourselves 
that these reasons are permanent and unchangeable. 

All plans for such an international government fall 
into one of three classes: They are plans for interna- 
tional government by one nation; or by a league of 
nations ; or by a body of men delegated by the nations, 
with power to raise, support, and wield an international 
army, navy, and police. An international government 
consisting of one nation would be necessarily autocratic, 
since a nation is necessarily endowed with physical 
force and cannot be legally limited. The only limi- 
tations upon the powers of a nation which are possible 
are self -limitations imposed by the nation upon itself; 
which, from the standpoint of political science, are no 
limitations. Moreover, the only nation which could, 
as a matter of practical politics, be the constituted in- 
ternational autocrat would be one which was already 
the de facto international autocrat by reason of its con- 
trol of the seas, the international trade routes, and the 
regions inhabited by weak or backward peoples, and 
which was so favorably located as to be able success- 
fully to weaken all its rivals by playing as sure winner 
in the diplomatic and military game of the balance of 
power. 

A league of nations is, like a nation, endowed with 
physical force and is incapable of constitutional limita- 
tions ; and if such a league were to institute itself as the 
international government, it would have to be, already, 
collectively, the de facto international autocrat. There 
being no possibility of constitutional limitation as 
respects either the internal or the external relations of 
the league, it would necessarily develop an invisible 
government of its own, which would be the autocrat of 
the league and of the world. This invisible government 
would necessarily be a body of men, or the one nation 



International Legislation 213 

which at the moment happened to be the de facto and 
actual autocrat of the world. 

If the nations, without disarming, were to appoint a 
body of persons with governmental powers for the com- 
mon purposes and endow this body with physical force, 
the result would be to increase the possibilities of war 
without establishing an efficient international govern- 
ment. If the nations were to disarm and delegate 
powers of government for the common purposes to a 
body of persons, at the same time endowing this body 
with physical force, they would destroy themselves as 
nations and become states of a universal federal state. 
Such self-abnegation on the part of the nations, if con- 
ceivable as a matter of practical politics, would, how- 
ever, be of no avail, since a federal state thus established 
would be found to be inefficient as a means of preserving 
international order and peace. 

The federal state, if attempted to be applied where 
the requisites for its operation do not exist, establishes 
an autocracy of a majority necessarily ignorant of its 
own needs or the needs of the minority, which is the 
worst and most hopeless of all autocracies. The two 
requisites for the successful existence of a federal state 
have been proved to be, first, that it shall include a 
territory every part of which is contiguous with every 
other part or is so situated and populated that it may 
be regarded as appurtenant for political purposes; 
second, that it shall contain a population which is 
highly civilized and homogeneous and which is under 
economic pressure to cooperate as an economic unit. 
Where these two conditions do not exist, the federated 
states and peoples are necessarily ignorant of the local 
conditions of one another and are swayed by their 
local interests, so that the majority vote of their rep- 
resentatives is necessarily determined by the play of 



214 The American Philosophy of Government 

the local interests against each other. Such a situation 
means either government by an assembly which is 
autocratic through ignorance, or an invisible 'govern- 
ment which is autocratic as being without constitutional 
limitations. On account of the realization of this danger 
of the federal-state plan of government, if extended be- 
yond the regions in which the necessary conditions exist, 
the proposal for converting the British Empire into a 
federal state, promoted by the Imperial Federation 
League from 1885 to 1895, was rejected by the people 
of Great Britain, and by the people of the British 
dominions, colonies, and dependencies. For the same 
reason, the people of the United States rejected the 
proposal to incorporate the Philippines into an enlarged 
American federal state. Taking the world together, 
with its diverse nations and peoples, the conditions for 
uniting the nations and their peoples into a federal 
state are lacking not only at the present time, but 
undoubtedly for all time to come. 

If, therefore, the nations were to attempt to institute 
any kind of international government endowed with 
physical force, they would inevitably be instituting an 
international autocracy. It would be indispensable 
that in any constitution of the society of nations, there 
should be an express constitutional prohibition, deny- 
ing physical force to any part of the organization — legis- 
lative, administrative, or judicial; and also a prohibition 
denying the power of taxation in any form or under any 
guise whatever, since a body which can tax can endow 
itself with physical force. 

The object of these prohibitions would be, however, 
only to prevent the international body delegated by the 
nations from becoming autocratic, and it would doubt- 
less be needful that the international body should 
exercise certain international police powers in certain 



International Legislation 215 

exceptional cases. Therefore it would be necessary 
to provide, by way of exception, that these prohibitions 
should not prevent the nations from making grants to the 
international body, by special international agreements, 
of police or taxing power, or both, within international 
areas or internationalized districts designated by these 
international agreements, where the local circumstances 
were such that it would be certain that no resistance 
would be made to the international police except by in- 
dividuals or by small unorganized bodies of individuals. 

But, though thus substantially deprived of physical 
force, the international body which any constitution of 
the society of nations must necessarily institute of 
course must not be deprived of force, since all govern- 
ment involves the use of force. It could be, and un- 
doubtedly ought to be endowed with persuasive force. 
Persuasion is a force which is utilizable and every day 
utilized, with increasing effectiveness, by all govern- 
ments, but which, like all forces, has the possibility of 
use for good or for evil. An international body, dele- 
gated by the nations, could use persuasion to induce 
the nations either to cooperate in order and peace, or 
to compete with one another in disorder and war. By 
controlling the physical force of some of the nations, it 
could terrorize and enslave other nations or produce 
interminable war and anarchy. Such a power must be 
carefully safeguarded by constitutional limitation, so 
that it may be effective and yet not dangerous. 

The international body, in order to be effective, must 
exercise scientifically organized, informed, and applied 
persuasion. This implies conciliation by expert, in- 
formed, and aggressive action. The international body 
must not sit still and wait for the nations to ask it 
to act. It must investigate and inform itself, must 
formulate counsel on the facts discovered by investiga- 



2i 6 The American Philosophy of Government 

tion, and must do everything proper to induce the na- 
tions to accept and follow its counsel. A body endowed 
with the power of conciliation uses real force and 
superior force, for it uses psychical force ; and psychical 
force, being the creator, user, and destroyer of physical 
force, is necessarily superior and major force. 

The international conciliative body, in order to be 
effective, must be pervasive. It must therefore have 
in each nation • a permanent branch or delegation. 
Doubtless the international body would appoint the 
members of each national delegation, subject to confir- 
mation by the nation through its executive government 
or its legislature. Doubtless also the members of each 
national delegation would be removable by the inter- 
national body. 

The international conciliative body, in order to be 
effective, must be armed by the nations with the weapon 
of publicity, so that it may create and wield, or cor- 
rect, public sentiment in favor of its righteous counsel. 
The power to publish its counsel and support it by 
statement of facts and by argument, might, and prob- 
ably would, require that it should be granted a means 
of publication controlled by itself. 

The international body, in order not to be dangerous, 
must use its power of persuasion exclusively for con- 
ciliation to induce cooperation. It must appeal to 
self-interest, seen in the light of the interests of all con- 
cerned. There must be an entire absence of threats, 
secret pressure, or other form of terrorization. Partisan 
politics must never be allowed to influence its personnel 
or work, or that of its delegation in any nation. Its 
independence and impartiality must be absolute, and 
should be jealously prized and guarded by the people. 

It should be impossible in the future for any confer- 
ences to be held when secret treaties exist affecting the 



International Legislation 217 

objects discussed, unknown not only to the nationals of 
the countries involved, but to the very parliaments them- 
selves, as has been the case in the past. The fundamen- 
tal work of the international body must be, through its 
delegation in each nation, to instruct the masses concern- 
ing the international status, the situation of their own 
nation, the attitude of their own national administra- 
tion toward international affairs and the reasons for 
and against it, as clearly and definitely as is compatible 
with the public interest; so that public opinion, instead 
of being swayed by ignorance, by prejudice or by local 
self-interest, will be sound and enlightened and a source 
of strength in any crisis. 

Conciliation necessarily involves the acceptance and 
promulgation of democracy, republicanism, and coop- 
eration ; that is, in a word, the two great commandments 
of the New Testament. It implies government by con- 
sent, since conciliation by the government and consent 
by the governed are correlative. The philosophy which 
it must inevitably act upon and inculcate, if it acts 
logically, is the philosophy of cooperation — that each 
man and each nation can gain more by voluntarily co- 
operating with all others in utilizing the forces of nature 
for human development and by participating equitably 
in the common product, than is possible by isolated or 
competitive action. 

The principle of conciliative direction of the inter- 
national acts and relations of nations by international 
agencies, is the fundamental principle on which the 
Convention for Pacific Settlement is based. The first 
part of that convention is devoted to "good offices and 
mediation ;' ' the second to "arbitration. " " Good offices 
and mediation" are merely diplomatic terms to express 
two elements of the whole process of international con- 
ciliation. Though the convention, as has been said, 



218 The American Philosophy of Government 

creates no general international agency of international 
conciliation, nevertheless by its legitimation and ap- 
proval of good offices and mediation by one nation as 
respects disputes between other nations, and by its rec- 
ommendation to disputant nations to institute com- 
missions of inquiry for the settlement of the dispute as 
international conciliative agencies, it recognizes inter- 
national conciliation as a proper and feasible means of 
directing international action. The establishment of 
means for international legislation and administration 
by conciliation, therefore, would not require the nations 
to accept a new principle. It would only be the carry- 
ing-out to its logical conclusion of a principle which 
they have already accepted. The problem of bringing 
about efficient international legislation and adminis- 
tration is that of formulating a scheme of international 
legislation and administration based on the accepted 
principle of international conciliation, which shall be ac- 
ceptable to the nations as being for their general and 
particular self-interest; and of fitting this scheme into 
the present scheme of international adjudication and 
national conciliation established by the Convention for 
Pacific Settlement, so as to expand that convention 
into a complete written constitution of the society of 
nations. 

The proper organs of an international political body 
for effecting international legislation and administration 
by conciliation would not, it seems, be a legislature 
and an executive exactly in the sense in which we use 
these terms, but would resemble what in our large 
civic associations and our business trusts (and, indeed, 
in nearly all associations of a purely voluntary and co- 
operative character) we call an executive committee 
and a general committee. The body corresponding to 
an executive committee might be called the ordinary 



International Legislation 219 

international directorate, and the one corresponding to 
a general committee, the superintending international 
directorate. The ordinary directorate would, through 
its members, aided by such subordinate committees 
and expert assistants as might be found necessary, and 
by the local delegations in each nation, do the continu- 
ous administrative work of conciliation — making inves- 
tigation of facts, formulating its counsel on the facts 
as ascertained, and doing everything proper, short of 
using physical force, to induce the adoption of the 
counsel by the national governments concerned. The 
superintending directorate, meeting occasionally or 
periodically, would, as chief administrative, superin- 
tend the administrative action of the ordinary directo- 
rate by formulating different counsel in particular cases, 
and would also act legislatively by laying down general 
rules applicable to general classes of international ac- 
tivities. These general rules would be primarily for the 
guidance of the ordinary directorate in its conciliative 
work. Incidentally they would be for the guidance of 
the nations and their people in the classes of interna- 
tional activities to which the rules would relate. 

The ordinary directorate would doubtless be more 
effective if it were to be an appointive body. The mem- 
bers might be appointed by a body corresponding to 
the Permanent Administrative Council established by 
the Hague Conferences, or by the superintending direc- 
torate. The superintending directorate would doubt- 
less be most efficient if it were to be a representative 
body. The system adopted in the United States of 
having a Senate and a House of Representatives, the 
one representing the nations as equals, and the other 
representing districts of equal population, would seem 
to be applicable. 

The composition of the membership of the directo- 



220 The American Philosophy of Government 

rates would be a matter of prime importance. There 
would doubtless need to be stringent rules determining 
the eligibility of persons to membership in either direc- 
torate, particularly in the ordinary directorate. The 
use of conciliation as a governing force so as efficiently 
to direct the action of masses of men, by their own 
consent, into activities which are to their self-interest 
and also to the interest of all, is expert work of the high- 
est character. No one should be eligible to such an 
official station who is not naturally endowed with great 
intellect and conscientiousness, and who has not added 
as much as possible to his natural powers by education, 
by study and research, by travel enlightened by know- 
ledge of languages, and by actual experience in govern- 
ment. 

Under an international conciliative directorate, inter- 
national legislation would be effected, as at present, by 
the conventional enactments of conferences of all na- 
tions ratified by the separate nations, or by the fixation 
of international custom through coinciding treaty and 
diplomatic action of many nations; but in addition it 
would be effected by the general rules laid down by 
the superintending directorate for the guidance of the 
ordinary directorate, by the ordinary directorate in fol- 
lowing its own precedents of counsel, and by uniform 
national legislation and treaty action respecting inter- 
national matters, this uniformity being brought about 
by the conciliative action of the international directo- 
rate. Each nation would be regarded as having not 
only exclusive powers of government within its own 
borders and over its own purely internal activities, and 
over all its citizens and corporations as respects their 
international activities, but also concurrent full powers 
of government with all other nations over the high 
seas, and concurrent limited powers of government 



International Legislation 221 

over the international trade routes, natural and arti- 
ficial, and over all regions held as dependencies by any 
one nation. The international directorate and the na- 
tional legislatures and treaty-making organs, acting 
uniformly in international affairs, would all together 
constitute the international legislature. International 
conferences for framing rules of international law, sub- 
ject to ratification by the nations, might also be held, 
if deemed advisable. 

The international administration would be conducted 
by the two directorates and the executives of the differ- 
ent nations; the latter enforcing, each upon its own 
nationals and corporations, in a uniform manner rec- 
ommended by the international directorate, the inter- 
national legislation enacted in manner above described. 
The international administrative would thus be com- 
posed of the international directorate and the particular 
national executive engaged in enforcing a particular act 
of international legislation. 

The present Permanent International Court of Arbi- 
tration, and the Permanent Court of Arbitral Justice 
already agreed to in principle by the Second Hague 
Conference, would remain as the supreme judicial or- 
gans of the society of nations; their decisions being 
advisory and being reported by the respective courts 
to the ordinary directorate so that it might secure their 
enforcement through conciliation of the nations con- 
cerned. Doubtless in the long run international dis- 
trict courts would be established in correspondence with 
the Permanent Court of Arbitral Justice, each district 
comprising one large nation or a group of smaller na- 
tions. These district courts might have final jurisdic- 
tion in non- constitutional cases in which the rights 
involved were really those of individual nationals of 
different nations, subject to certiorari from the Perma- 



222 The American Philosophy of Government 

nent Court of Arbitral Justice. The Permanent Court 
of Arbitral Justice might have appellate jurisdiction 
over the district courts in constitutional cases between 
individual nationals of different nations, and exclusive 
jurisdiction in suits between nations involving strictly 
national rights as distinct from the rights of individual 
nationals. The nations would of course remain at lib- 
erty to settle their disputes by arbitration conducted 
by arbiters of their own choice, if they saw fit. 

The primary power which would need to be delegated 
to the international directorate would be the power to 
bring about, through conciliation applied to national 
governments so as to induce uniform national legislation 
and treaty action, the internationalization and freedom 
of the high seas and of the international trade routes, 
including international railroads, canals, straits, sounds, 
and rivers. This would involve a conciliative direction 
of international trade, finance, intercourse, and migra- 
tion. Power might also be delegated to the international 
directorate to bring about, by the same conciliative 
action, a more or less complete internationalization of 
backward countries held as dependencies of separate 
nations; such internationalization to be effected by 
each nation holding dependencies adopting a more or 
less open-door policy, determined in each case by the 
local circumstances of each dependency, as respects 
concessions for internal improvements and for carrying 
on manufacturing, mining, trade, transportation, and 
banking in these countries; the ultimate goal, being the 
equalization of economic opportunity among all the 
nations. 

The exceptional cases in which the police and taxing 
power, or the police power alone, might properly be 
granted to the international directorate would, it seems, 
be of three kinds. First, if a district were provided as 



International Legislation 223 

the seat of international direction, the international 
directorate would necessarily have the power of local 
police and local taxation within the district; second, if 
the high seas, as an international area by reason of 
being the common property of all nations, were to be 
freed from national naval vessels as the results of de- 
structive inventions and the successful working of the 
international directorate, the international directorate 
might be granted authority to patrol the sea routes for 
police purposes ; and, third, if zones or districts border- 
ing on straits, canals, or rivers were internationalized 
by special international agreement, the international 
directorate might be granted authority to maintain a 
police patrol within the internationalized zone or 
district. 

The whole directorate, composed of the ordinary 
directorate and the superintending directorate, together 
with the international courts — which might be called 
the general international directorate — would be finan- 
cially supported in the same manner as is the present 
international body located at The Hague. The Conven- 
tion for Pacific Settlement provides that the expenses 
of the present Hague organization "shall be borne by 
the signatory powers in the proportion fixed for the In- 
ternational Bureau of the Universal Postal Union. ' ' The 
convention establishing the Universal Postal Union ac- 
tually fixes the proportions to be paid. Doubtless no 
better system could be devised at the present time. 

The safeguards around the international directorate 
would be primarily, the substantial denial of power to 
use physical force, which would carry with it a denial 
of general taxing power; secondarily, the requirements 
that in its action it should deal exclusively with the 
national governments, that it should use conciliation 
and persuasion exclusively ; that it should be composed 



224 The American Philosophy of Government 

of experts and superintending experts; that it should 
have a specific sphere of powers relating to the seas as 
the common property of all nations, to the international 
trade routes as subject to the common use of all nations, 
and to colonies and dependencies as subject to a quali- 
fied common use by all nations; and, thirdly, the pro- 
vision that it should never be reduced to the necessity 
of begging money from the nations or asking protection 
from any nation, but should be assured, in advance 
and permanently, by an agreement of all nations, an 
adequate and dignified support, and perhaps also an 
appropriate seat of international direction exclusively 
governed by itself. 

It is incumbent on the United States to see to it, so 
far as may be in its power, that no international di- 
rectorate is ever established except under a written 
constitution delegating carefully limited powers and 
ratified by all, or at least two- thirds of the nations; and 
that the written constitution shall be plainly such on 
its face — not merely in substance, but also in form. 
It is incumbent also upon the United States to see to it 
that this constitution shall contain a plain and dis- 
tinct recognition of the universal and fundamental 
principles which lie at the basis of all orderly and peace- 
ful society. The insistence of Americans on written 
constitutions is not a mere American idiosyncrasy. 
Written constitutions are a vital and essential part of 
the American system, regarded as a universal system. 
By the Declaration of Independence, the American 
people committed themselves to maintenance of the 
proposition, as a universal and self-evident truth, that 
all men are equally the creatures of a common Creator, 
and that there are therefore certain rights of every 
human being, of which he cannot by his own action 
deprive himself, which arise from the nature of man as 



International Legislation 225 

a spiritual being and from the equal endowment of 
each man by his Creator with the attributes of life, 
the will to live, and the desire for happiness, which 
are common to all; so that these fundamental and uni- 
versal rights exist antecedent to and independent of 
every government, however great and powerful. This 
fundamental and necessary limitation upon the power 
of all governments requires recognition by all govern- 
ments through a written constitution ; and since all the 
subordinate rights of individuals established by gov- 
ernments must be derived from and consistent with 
these fundamental rights, written constitutions are also 
necessary in order to enable the people governed so to 
frame their government and so to limit and safeguard 
it, by general declarations, by specifications of powers, 
and by prohibitions, that it will certainly respect and 
secure the fundamental principles which underlie all 
human society and the fundamental rights of individu- 
als and nations based on these fundamental principles. 
Therefore it would be necessary that the written 
constitution of the society of nations establishing the 
international directorate should contain a declaration 
of the universal and fundamental principles of all human 
action and relationship such as is contained in the first 
sentence of the second paragraph of the preamble of 
the Declaration of Independence; a declaration of the 
fundamental rights and duties of nations, such as that 
which has been adopted by the American Peace Society 
and the American Institute of International Law; a 
declaration of the objects of the constitution, modeled 
upon the preamble of the Constitution of the United 
States ; and also, if possible — after the provisions insti- 
tuting the different parts of the general international 
directorate, denning their composition and the relations 
of one to the other, and determining the sphere of 

IS 



226 The American Philosophy of Government 

jurisdiction of the whole directorate and each of its 
parts by a specification of powers — a bill of rights 
democratizing and republicanizing the relations between 
the government of each nation and the people of the 
nation by establishing prohibitions, absolute or condi- 
tional, upon certain forms of governmental action 
found by experience to be injurious or destructive to 
liberty. 

The institution of such an international directorate 
as has been above proposed would not disturb any of 
the existing agencies or processes by which international 
activities and relations are now directed. The nations 
would retain their ministries of foreign affairs, their 
ministries in charge of dependencies, their diplomatic 
and consular officers and their courts functioning in 
international cases. The judicial tribunals and the ad- 
ministrative arrangements ancillary to them, estab- 
lished by the Hague Conferences, would be unchanged. 
Upon the present international mechanism the inter- 
national directorate would be superposed as a means 
of bringing all the existing agencies and processes into 
cooperation and harmony. 

The international directorate proposed would be but 
an application on a universal scale of the system which 
nearly all nations having dependencies have found nec- 
essary in the management of their colonial empires. 
The Privy Council and the Council for India in Great 
Britain, and the colonial councils of the European na- 
tions, which, under the ministries for the colonies and 
dependencies, manage the colonial empires of these re- 
spective nations, are in principle interstate directorates, 
holding together widely separated countries, diverse in 
race, climate, and civilization, by methods which are 
essentially conciliative. Though these interstate direc- 
torates are backed by the physical force of the nation, 



International Legislation 227 

physical force has been found to be inapplicable in 
holding dependencies to nations except when used spar- 
ingly and scientifically in aid of conciliation, and in 
many cases to be wholly inapplicable. The superin- 
tending directorate in colonial empires is in process of 
evolution, and in one or more of them will doubtless 
soon be a fact. The problem of holding together the 
widely separated nations of the world, diverse in race, 
climate, and civilization, is clearly analogous to the 
problem of managing colonial empires. The only differ- 
ence is, that the international directorate must be a 
delegated body, instituted by all the nations, which shall 
be of and for them all, and shall carry the principles 
of democracy and republicanism into international 
relations. (Cf. "The Administration of Dependen- 
cies," by the author of this article, pp. 527-530, 578- 
604, as respects the management of colonial empires 
by directive councils and superintending directive 
bodies, and the applicability of the directorate form 
of government in political aggregations where the fed- 
eral-state form is inapplicable.) 

The plan proposed would, of course, not be a panacea 
for all international ills. Each nation would continue 
to be free and independent. It would reject or accept 
the counsel of the international directorate according as 
it thought its self-interest demanded. Secret treaties 
and other forms of intrigue, and excessive national 
armaments to support the intrigues, would doubtless 
continue to go on. Domination of the seas, of the inter- 
national trade routes, and of the backward countries by 
individual nations or by a league or leagues of nations, 
would no doubt continue to be attempted. Invisible 
international government, in democracies and monar- 
chies, would undoubtedly continue to be the dream of 
political, financial, and trading syndicates, and to have 



228 The American Philosophy of Government 

a more or less stable de facto existence. Attempts would 
probably be made to pervert the international direc- 
torate to selfish national ends. Therefore war would 
continue to be possible. But a means would have been 
provided for the gradual abolition of all these abnormal 
processes and agencies and for the limitation, by the 
free act of the separate nations, of the excessive national 
armaments which make these abnormal processes and 
agencies possible. Excessive national armaments will 
be limited by the voluntary act of each nation when it 
ceases to be for the self-interest of each nation to main- 
tain an excessive armament. When an international 
organization, by its successful operation, has made 
some part of a nation's armament unnecessary and 
therefore excessive, the nation will, as a matter of com- 
mon sense and economic necessity, scrap the part which 
is excessive, and release the capital and labor for pro- 
ductive employment. Limitation of national armament 
in any other manner is, it would seem impossible. In 
this manner it may be possible. 

That some such international conciliative directorate 
as has been suggested, exercising legislative and admin- 
istrative as well as judicial direction of the nations as 
respects international matters, must sooner or later be 
established, would seem to be beyond doubt. Destruc- 
tive inventions have made the strong nations and the 
weak nations almost equally strong and equally defense- 
less. Constructive inventions have enabled all men and 
nations to share equally in the common necessities of 
life and in the common knowledge. All the races of 
men are rapidly becoming equal in physique and intelli- 
gence, and equally cognizant of their fundamental 
rights. 

The proper time to begin the institution of the new 
system would seem to be the present moment. The 



International Legislation 229 

questions of national existence and boundaries which 
are now the obstacles to peace, are almost entirely 
questions incidental to the rival ambitions of great 
powers. As things now are, small nations occupying 
strategic positions on international trade routes cannot 
be allowed independent existence within boundaries 
determined by the principles of nationality and equality 
of national right and opportunity. These small nations 
must, under the present system, be given such boun- 
daries and allowed such privileges as are consistent with 
the political and economic policies of the nation or group 
of nations which for the moment holds the balance 
of power and dominates the particular international 
trade routes on which these small nations are situated. 
So long as there is no international direction to modify 
and gradually to supplant the present system of the 
balance of power, that system will remain, involving 
all the great powers in the struggle for world power, and 
leaving the small and strategically important nations 
in. a condition of perpetual uncertainty as respects their 
boundaries, their privileges, and even their national 
existence. A conclusion of the war which should de- 
termine, according to the exigencies of the balance of 
power, the relations of the great powers to each other 
and the privileges and boundaries of smaller nations, 
would greatly complicate the future. Such a peace, as 
laying the foundation for a greater war in the future, 
might prove a worse calamity than the war itself. The 
most certain assurance against a peace of this kind 
would seem to be a unanimous agreement between the 
great powers, entered into during the war, accepting 
the principle of an international conciliative direction 
after the war. 

Once such an agreement were signed, it would be 
possible for the great powers, in the treaty of peace, 



230 The American Philosophy of Government 

with safety to each and all and without loss of dignity 
to any, to adjust properly the relations of each to the 
other and to determine scientifically and fairly the 
questions concerning the existence, rights, and bounda- 
ries of the smaller nations and the claims of the na- 
tionalities which are aspiring to nationhood. A treaty 
of peace so made would form a sound basis for the 
future orderly and peaceful cooperative development 
of all nations, and would greatly simplify the work 
of the international directorate which would be form- 
ally instituted after the war through a constitutional 
convention of all nations. 



LEGAL LIMITATION OF ARBITRAL 
TRIBUNALS 



231 



LEGAL LIMITATION OF ARBITRAL 
TRIBUNALS 

Reprinted from University of Pennsylvania Law Review, Vol. 60, 
December, 191 1 

UNTIL the year 1776, the doctrine prevailed uni- 
versally among the civilized nations that there 
must be one part of the government of every 
independent state in which was vested legally unlimited 
power ; the part of the government which exercised this 
legally unlimited power being regarded as the source of 
the law of the state. In some states, this legally un- 
limited power was regarded as vested in the Monarch; 
in others in Parliament. 

In 1776, as the result of ten years' consideration by 
the American Colonies of the claim of Great Britain 
that its Parliament had the right to exercise legally 
unlimited power over them, the United States of Amer- 
ica came into existence under a Declaration of Inde- 
pendence, which was at the same time an Agreement of 
Union, and the preamble of which was a Fundamental 
Constitution of the United States. By this Fundamen- 
tal Constitution, — which today exists in full force, 
underlying the Constitution of 1787, — a new political 
doctrine was advanced and a new political system was 
founded. According to this Fundamental Constitution, 
all governmental power is held to be legally limited — 
primarily by the principles of supreme universal law, 
and secondarily by the supreme organic law of each 
particular society, made theoretically by all the people of 

233 



234 The American Philosophy of Government 

the society assembled, and determining the structure of 
the society and the relations of the parts. The principles 
of supreme universal law are those which grow out of 
the nature of man and society. Each political society 
as a necessity to its own existence is regarded as secur- 
ing to each individual his self-protection and self- 
preservation — the protection and preservation of the 
individual being necessary to the protection and preser- 
vation of society. These rights of the individual, grow- 
ing out of his human nature and his relation to his 
Creator, and out of the nature of human society, are 
held to be "unalienable" and hence universal. The 
Declaration does not purport to state all the principles 
of the supreme universal law. It only declares that 
"among" these unalienable rights are the rights of 
"life, liberty and the pursuit of happiness." The 
rights thus named are clearly rights of self-protec- 
tion and self-preservation. On the necessity of self- 
protection and self-preservation in order that society 
may exist, and on the necessity of there being an organ- 
ization of every society, made theoretically by all the 
people assembled, before there can be a government, 
the preamble of the Declaration of Independence based 
the American doctrine that all governmental power is 
by the necessity of the case legally limited. The 
American doctrine of legally limited governmental 
power became thus opposed to the European doctrine 
of legally unlimited governmental power, and there 
was founded an American system which was opposed to 
the European system. 

The success of the United States in the American 
Revolution established the American system. In 1787, 
the Constitution of the United States was adopted, 
giving to the world a proof that the American system 
could be worked out in a practical form. By the Con- 



Limitation of Arbitral Tribunals 235 

stitution, the theory of the Declaration was translated 
into a political fact. 

In 1823, the South American countries had become 
independent and free to choose whatever system they 
might prefer. The "Holy Alliance" of the powers of 
Continental Europe threatened to extend the European 
system to South America by force. In that year 
President Monroe, with the informal concurrence of 
both Houses of Congress and with the approval of the 
American people, in a Message to Congress, announced 
as the distinctive policy of the United States, that the 
European system should not be extended to the West- 
ern Hemisphere by European force, on the ground that 
such an extension would tend to destroy the American 
system, which the people of the United States believed 
to be essential to peace and order. In that Message 
he said: 

The political system of the Allied Powers is essentially 
different . . . from that of America. This difference pro- 
ceeds from that which exists in their respective govern- 
ments; and to the defence of our own, which has been 
achieved by the loss of so much blood and treasure, and 
matured by the wisdom of their most enlightened citizens, 
and under which we have enjoyed unexampled felicity, this 
whole nation is devoted. We owe it, therefore, to candor 
and to the amicable relations existing between the United 
States and those Powers, to declare that we should consider 
any attempt on their part to extend their system to any 
portion of this hemisphere as dangerous to our peace and 
safety. . . . It is impossible that the Allied Powers should 
extend their political system to any portion of either conti- 
nent without endangering our peace and happiness. 

The Civil War abolished slavery and thus removed 
the inconsistency between our doctrine and our prac- 



236 The American Philosophy of Government 

tice, which had up to that time led to impossible com- 
promises and to an attempt to regard the preamble of 
the Declaration as a statement of "glittering general- 
ities." By the Fourteenth and Fifteenth Amendments 
to the Constitution the American system was completed. 

The European system of legally unlimited govern- 
mental power results logically in what is called the 
"sovereignty" of independent states. "Sovereign" 
states live theoretically in a condition of omnipotence 
and unsociability. When they come into contact with 
other "sovereign" states, they fight or agree. "Sov- 
ereign" states are theoretically not subject to "law"; 
they are above law and make law for non-sovereign 
communities which they control by force. Hence on 
the European system judicial settlement of disputes 
between nations is theoretically inconceivable, and ar- 
bitration tends to be only a political compromise made 
by high diplomatic officials when the ordinary diplo- 
matic officials are unable to agree. 

According to the American system, there is no gov- 
ernmental omnipotence and hence no state omnipo- 
tence. States are merely large corporations created by 
the people of the states assembled for the purpose of 
collective and individual sejf -protection and self-preser- 
vation, and organized and vested with specific powers 
for this purpose. Like other corporations, states are 
assumed to exist in society. They are hence amenable 
to law, and disputes between them are to be settled by 
courts. Hence the Supreme Court of the United States 
has jurisdiction of cases to which the United States is 
a party and of controversies between states. The 
American states willingly submit their differences to 
settlement by the Supreme Court, because that Court, 
like every other part of the American Government, 
acts under the Bill of Rights and the other provisions 



Limitation of Arbitral Tribunals 237 

of the Constitution and is legally limited by all the 
applicable provisions of the Constitution in each case 
that arises before it. In the United States proper, the 
Supreme Court is legally limited by all the provisions 
of the Constitutional Bill of Rights, in their literal 
sense; and also by the organic provisions of the Con- 
titution — the provisions which determine the relations 
of the states to each other and to the United States — 
in their literal sense. In the political society composed 
of the United States and the countries and places under 
its jurisdiction, the Supreme Court is legally limited, 
as it has recognized by its own decisions, by those 
provisions of the Constitutional Bill of Rights which are 
of universal import, and by the organic provisions of 
an unwritten or customary Constitution, based on the 
Constitution of the United States and formed by apply- 
ing the provisions of that Constitution, not in their 
literal sense, but according to "the general spirit of 
the Constitution," as reasonable customs, in such 
manner as may be needful to suit the circumstances of 
this greater political society and its component parts. 

In suits between states, or to which the United States 
is a party, the Supreme Court, acting under the Con- 
stitutional Bill of Rights, holds void and ignores any 
governmental action occurring in the United States or 
in any country or place under its jurisdiction, which 
deprives any person or personality of his or its life, 
liberty or property without due process of law; and 
upholds the organic provisions of whichever Constitu- 
tion may be involved — the written Constitution in the 
case of the political society known as "the United 
States of America," and the unwritten one in the case 
of the greater political society composed of this nation 
and the countries and places annexed to it and under 
its jurisdiction. 



238 The American Philosophy of Government 

The United States, however, three years ago agreed 
by treaties with a number of foreign nations, to submit 
to arbitration certain kinds of disputes which it might 
have with them, and it is now proposed to extend some 
of these arbitration treaties so that they will cover a 
much wider field. The question arises whether these 
treaties, if they are constitutional, are consistent with 
the American system ; or to state it differently, whether 
these treaties, if 'they are constitutional, do not commit 
the United States to the European system. 

The arbitration treaty between the United States and 
Great Britain of 1908, and the other existing arbitra- 
tion treaties of the same year and of later date, provide, 
among other things, as follows: 

" Differences which may arise of a legal nature or relating 
to the interpretation of treaties existing between the two 
contracting parties and which it may not have been possible 
to settle by diplomacy, shall be referred to the Permanent 
Court of Arbitration established at The Hague by the 
Convention of the 29th of July, 1899 ; provided, nevertheless, 
that they do not affect the vital interests, the independence, 
or the honor of the two contracting States, and do not 
concern the interests of third parties. 

"In each individual case the high contracting parties, 
before appealing to the Permanent Court of Arbitration, 
shall conclude a special agreement defining clearly the mat- 
ter in dispute, the scope of the powers of the arbitrators, 
and the periods to be fixed for the formation of the arbitral 
tribunal and the several stages of the procedure." 

Nothing is said in these treaties concerning any legal 
limitations on the power of the tribunal. The parties 
are in each case to conclude a special agreement "de- 
fining . . . the scope of the powers of the arbitrators." 
The Convention for the Pacific Settlement of Inter- 



Limitation of Arbitral Tribunals 239 

national Disputes, of the 29th of July, 1899, likewise 
makes no mention of legal limitations upon the powers 
of the arbitral tribunal. By that Convention it was 
agreed that ''international arbitration has for its object 
the settlement of differences between states by judges 
of their own choice, and on the basis of respect for law." 
The arbitrators are to be persons "of known compe- 
tency in questions of international law," and the powers 
who have recourse to arbitration are to sign a special 
act in which "the extent of the arbitrators' powers" 
is to be " clearly defined." (Articles, 15, 23, 31 .) There 
is nowhere in the treaties or in the convention any sug- 
gestion of limitations upon the arbitral tribunal under 
a law which is binding upon the tribunal and the dis- 
putant nations. The expression "on the basis of 
respect for law" is indefinite and recommendatory, 
binding the tribunal to nothing. The powers of the 
arbitrators are legally unlimited. They may be re- 
stricted by the agreement of the parties, but they are 
not restricted by law. 

It may therefore happen that a case between states, 
or involving a dispute between states, which has been 
tried by the Supreme Court of the United States acting 
under all the applicable provisions of the Constitution, 
and which has been decided by it with reference to 
these limitations, may be retried in an arbitration pro- 
ceeding by a tribunal which is without any legal limita- 
tion whatever, and decided in an entirely different 
manner. So the arbitral tribunal may decide a case on 
the principle of political compromise or on the principle 
of regulating the balance of power, and without at- 
tempting to apply legal principles. Of course, these 
difficulties might to some extent be met by the special 
agreement made in each case; but any limitations upon 
the powers of the arbitrators arising out of the agree- 



240 The American Philosophy of Government 

ment would not resemble, either in form or in effect, 
those legal limitations which rest upon courts as parts 
of a system of government based on legally limited 
powers. 

The existing treaties provide that they shall expire 
in five years from the date of their ratification. This 
fact, coupled with the fact that they apply only to a 
small class of cases and reserve to each disputant nation 
the right to withdraw cases from arbitration, makes 
these treaties of little consequence as providing an 
immediate substitute for war. Whenever there is any 
danger to one of the contracting nations from a pro- 
posed arbitration, the case is withdrawn from arbitra- 
tion by that party as one affecting its "vital interests, 
independence or honor." 

New treaties have recently been signed with Great 
Britain and France for the purpose of extending the 
practice of arbitration to all "justiciable" cases and 
making withdrawal of "justiciable" cases practically 
impossible. The question whether these treaties shall 
be ratified is one of great importance. We have no 
longer to consider treaties which apply only to a small 
class of cases, which reserve to each of the disputant 
nations an almost discretionary right of withdrawing 
cases from arbitration, and which are to be in force for 
a short period. If the pending treaties are ratified, and 
if they are constitutional, arbitration of most of the 
disputes between the contracting nations will become 
a permanent institution, and tremendous interests will 
be involved. 

The pending treaties provide, among other things, 
as follows: (Article I.) 

"All differences hereafter arising between the high con- 
tracting parties, which it has not been possible to adjust by 



Limitation of Arbitral Tribunals 241 

diplomacy, relating to international matters in which the 
high contracting parties are concerned by virtue of a claim 
of right made by one against the other under treaty or 
otherwise, and which are justiciable in their nature by 
reason of being susceptible of decision by the application of 
the principles of law or equity, shall be submitted to the 
Permanent Court of Arbitration established at The Hague 
by the Convention of October 18, 1907, or to some other 
tribunal, as may be decided in each case by special agree- 
ment, which special agreement shall provide for the organi- 
zation of such tribunal if necessary, define the scope of the 
powers of the arbitrators, the question or questions at issue, 
and settle the terms of reference and the procedure there- 
under. 

" The provisions of Articles 37 to 90, inclusive, of the Con- 
vention for the Pacific Settlement of International Disputes 
concluded at the second Peace Conference at The Hague on 
the 1 8th October, 1907, so far as applicable, and unless they 
are inconsistent with or modified by the provisions of the 
special agreement to be concluded in each case, and except- 
ing Articles 53 and 54 of such convention, shall govern the 
arbitration proceedings to be taken under this treaty." 

These treaties, it will be noticed, are the same as the 
existing treaties, in the fact that they do not recognize 
any legal limitations as binding on the arbitral tribunal. 
A special agreement is to be made defining the scope 
of the powers of the arbitrators, but neither in this 
provision, nor in the Convention of 18th October, 1907, 
is there any legal limitation recognized. Article 37 of 
this Convention is the same as Article 15 of the Con- 
vention of 1899, an d declares that international arbi- 
tration is to proceed "on the basis of respect for law." 
"Justiciable" cases are to be submitted to arbitration 
and justiciable cases are defined as those "susceptible 
of decision by the application of the principles of law 
or equity' ' ; but there is no requirement that the arbi- 
16 



242 The American Philosophy of Government 

trators shall decide these justiciable cases according to 
the principles of law or equity, and no legal limitation 
of any kind is recognized as binding upon them. 

The provision limiting the withdrawal of cases from 
arbitration on the ground that they are not "justici- 
able" is as follows: (Articles II and III.) 

' ' The high contracting parties further agree to institute 
as occasion arises, and as hereinafter provided, a Joint 
High Commission of Inquiry, to which, upon the request 
of either party, shall be referred for impartial and conscien- 
tious investigation any controversy between the parties 
within the scope of Article I, before such controversy has 
been submitted to arbitration, and also any other contro- 
versy hereafter arising between them, even if they are not 
agreed that it falls within the scope of Article I. . . . 

"It is further agreed, however, that in cases in which the 
parties disagree as to whether or not a difference is subject 
to arbitration under Article I of this treaty, that question 
shall be submitted to the Joint High Commission of Inquiry; 
and if all or all but one of the members of the Commission 
agree and report that such difference is within the scope of 
Article I, it shall be referred to arbitration in accordance 
with the provisions of this treaty." 

This last paragraph has been held by the majority 
of the Senate Committee on Foreign Relations to have 
the legal effect to obligate (or attempt to obligate) this 
nation to arbitrate any dispute with Great Britain or 
France which the Joint High Commission shall hold to 
be arbitrable (justiciable) either by a unanimous vote 
or by the vote of a majority which includes all but one 
member. The majority of the Senate Committee, in 
their report of August 15, 191 1, therefore recommended 
the omission of this paragraph as attempting to impair 
the constitutional power of the Senate to ratify treaties, 
by delegating to a tribunal the right to decide the 



Limitation of Arbitral Tribunals 243 

question of arbitr ability of international disputes. 
After quoting the last paragraph above quoted, it 
was said: 

' ' It will be seen by examination of the clause just quoted 
that if the Joint Commission, which may consist of one or 
more persons, which may be composed wholly of foreigners 
or wholly of nationals, decides that the question before them 
is justiciable under Article I, it must then go to arbitration 
whether the treaty-making power of either country believes 
it to be justiciable or not. A special agreement, coming to 
the Senate after the Joint Commission had decided the 
question involved to be justiciable, could not be amended 
or rejected by the Senate on the ground that in their opinion 
the question was not justiciable, and did not come within 
the scope of Article I. . . . 

' ' In approving Article I of the treaty the Committee as- 
sents to the arbitration of all questions coming within the 
rule there prescribed. The terms in which the rule is stated 
are, however, quite vague and indefinite, and they are 
altogether new in international proceedings. It is possible 
that others may take an entirely different view from that 
entertained by the Committee or by the negotiators of the 
treaty as to what was meant by justiciable or as to what was 
meant by the principles of law or equity when applied to 
international affairs, and in the absence of any established 
rules of international law for the construction of such pro- 
visions and of any precedents, others might put upon these 
provisions a construction entirely different from that which 
the treaty-making power now intends. Under these cir- 
cumstances to vest in an outside Commission the power to 
say finally what the treaty means by its very general and 
indefinite language is to vest in that Commission the power 
to make for us an entirely different treaty from that which 
we supposed ourselves to be making." 

The effect of the treaties, is, therefore, in the opinion 
of the majority of the Senate Committee, to attempt 



244 The American Philosophy of Government 

to establish a system of joint judiciary for the three 
nations, and to delegate to the joint judiciary the power 
to determine the limits of its own jurisdiction. 

On November 8, 191 1, Secretary of State Knox de- 
livered an address on "The Pending Arbitration 
Treaties" at Cincinnati, before the American Society 
for Judicial Settlement of International Disputes, in 
which he placed a different meaning on the paragraph 
in question. In that address, the Secretary of State 
quoted the following provisions from the pending 
treaties : 

(From the Treaty with Great Britain.) "The special 
agreement in each case shall be made on the part of the 
United States by the President of the United States, by 
and with the advice and consent of the Senate thereof, 
His Majesty's Government reserving the right before con- 
cluding a special agreement in any matter affecting the 
interests of a self-governing Dominion of the British Empire 
to obtain the concurrence therein of the Government of 
that Dominion." 

(From the Treaty with France.) "The special agreement 
in each case shall be made on the part of the United States 
by the President of the United States, by and with the 
advice and consent of the Senate thereof, and on the part 
of France subject to the procedure required by the consti- 
tutional laws of France." 

The Secretary of State in his address said : 

" Although in the pending treaties the Executive branches 
of the Governments concerned agree to be bound by the 
decision of the Commission as to the arbitrability of a 
question upon which the Executive branches do not agree, 
this decision is subject to the approval of the self-governing 
Colonies of Great Britain, if the question affects them, and 
to the approval of the Senate of the United States, and in 



Limitation of Arbitral Tribunals 245 

certain cases the Senate and Chamber of Deputies of France, 
to whom the right of approval is expressly reserved in each 
case. 

" Every agreement to arbitrate must go to the Senate for 
its approval. There can be no arbitration without its 
approval. An agreement to arbitrate goes to the Senate 
for its approval either because the Executive branches of 
the two countries concerned in the difference agree that 
the difference is one for arbitration or because, failing so to 
agree, the Commission of Inquiry report that it is such a 
difference. 

" How can the Senate's power over the agreement be less 
if it goes to the Senate after the Commission's report that 
it presents an arbitrable question than if it had gone there 
because of the opinion of the Executive branches of both 
Governments to the same effect? 

" If the two Governments agree that the difference is 
arbitrable, they make an agreement to arbitrate it and it 
is sent to the Senate for its approval. If the two Govern- 
ments cannot agree that the difference is arbitrable that 
ends the matter until the Commission reports, and if its 
report is that the difference is arbitrable, an agreement is 
made to arbitrate it and the agreement is sent to the Senate 
for approval just as if no such question had been raised, and 
the Senate deals with it with unimpaired powers." 

The Secretary of State thus asserts that the true 
construction of the pending Treaties is, that "the Ex- 
ecutive branches of the Governments concerned agree 
to be bound by the decision of the Commission as to 
the arbitrability of a question upon which the Executive 
branches do not agree," and that at the same time, 
after a decision has been made by the Joint High Com- 
mission that a certain question is arbitrable (justici- 
able), the Senate of the United States, by reason of 
the reservation of its powers respecting the special 
agreement in each case, deals with the question of 



246 The American Philosophy of Government 

arbitrability "with unimpaired powers." The last 
paragraph of Article III, as construed by the Secretary 
of State, should, therefore, in order to conform to his 
construction, read as follows: 

"It is further agreed, however, that in cases in which the 
parties disagree as to whether or not a difference is subject 
to arbitration under Article I of this Treaty, that question 
shall be submitted to the Joint High Commission of In- 
quiry ; and if all or all but one of the members of the Com- 
mission agree and report that such difference is within the 
scope of Article I, the Executive branches of the Govern- 
ments concerned shall be bound by the decision of the Com- 
mission as to the arbitrability of the question, but the 
Senate of the United States in all cases (and also a self- 
governing Dominion of the British Empire in cases involv- 
ing its interests under a treaty signed by Great Britain; 
and also the Senate and Chamber of Deputies of France in 
cases where they have the constitutional right of ratification 
of treaties signed by the President of the French Republic) 
may, by virtue of their reserved rights regarding special 
agreements hereunder, deal with the question of arbitra- 
bility with unimpaired powers." 

The power of the Senate of the United States under 
the Constitution is to advise with the President con- 
cerning treaties and to accept, amend or reject them. 
There is no power given by the Constitution to the 
Senate to veto the conclusions of a political tribunal or 
to overrule the decisions of a judicial tribunal. 

The meaning given to the pending Treaties by the 
Secretary of State would make it possible for one part 
of the Government of the United States — the Presi- 
dent — to be bound by the decision of a tribunal regard- 
ing a foreign matter, while another branch — the Senate 
— was not bound. Such a situation would seem likely 



Limitation of Arbitral Tribunals 247 

to result in a war which would be at once civil and 
international. 

The action of the Senate of the United States in 
overruling a decision of the Joint High Commission 
would not resemble that of a self-governing Dominion 
of the British Empire in overruling such a decision. 
The Dominion would in this case act as a third party 
whose interests were affected and who refused to be 
bound by the act of Great Britain. Nor would the 
action of the Senate of the United States resemble that 
of the Senate and Chamber of Deputies of France in 
overruling such a decision; for there can be no doubt 
but that if both these Chambers united in overruling 
such a decision, the matter would be settled so far as 
France was concerned, since the two Chambers together 
would certainly represent the united will and purpose 
of the people of France. To place the responsibility 
on one Chamber in such a case is far different from 
placing it on the two Chambers. 

The interpretation placed on the pending treaties by 
the Secretary of State is, of course, not binding unless 
acquiesced in by the Senate and by the nations which 
are parties to the pending treaties. Therefore, as there 
exists a difference at present between the majority of 
the Senate Committee and the Secretary of State as to 
the meaning of the treaties, the opinion of the majority 
of the Senate Committee will, for the purposes of this 
article, be assumed to be correct. If the pending trea- 
ties have the meaning given to them by the Secretary 
of State, it would seem that, though they may perhaps 
be constitutional, it is improbable that they will be 
supported by the public sentiment of the nation. If 
they have the meaning attributed to them by the major- 
ity of the Senate Committee, the point made in their 
report that the treaties are unconstitutional as impair- 



248 The American Philosophy of Government 

ing the constitutional right of the Senate to ratify 
treaties seems unanswerable. There are, however, some 
other considerations regarding the pending treaties, on 
this construction of them, with which it is the purpose 
of this article to deal. 

These treaties are, it would seem, objectionable be- 
cause they attempt to subject a great and indeterminate 
part of the foreign interests of the United States to a 
tribunal which exercises powers without legal limita- 
tion — that is, to a tribunal which exercises arbitrary 
power — without reserving to the President, or to the 
President and Senate, or to the Congress, an unimpaired 
discretionary power to withdraw cases from arbitration 
sufficiently broad to enable us to protect our system 
and our vital interests. 

We submit all our domestic questions to legally 
limited tribunals. Consequently, it seems clear that if 
we adopt the system attempted to be established by 
these treaties, we shall to that extent abandon the 
American system and adopt the European. That which 
we fought the Revolution to gain, that which we 
defended by the Monroe Doctrine, that which we waged 
the Civil War to perfect, we shall voluntarily yield. 
The European and American systems will have met, 
and the European system will have prevailed. It is 
highly improbable that the decisions of a legally un- 
limited tribunal would lead to peace. We obey the 
Supreme Court because it is legally limited, and because 
it acts within these established limits and for certain 
definite purposes, as a part of the carefully wrought 
out mechanism of our government. We shall not be 
likely to obey a tribunal which has no legal limits, 
which is bound by no law, which is disconnected from 
the government of any nation, and which exists above 
the nations which create it, theoretically omnipotent 



Limitation of Arbitral Tribunals 249 

except as the disputant nations make subtractions from 
its omnipotence by a special agreement in each case. 
Such a tribunal might ignore the international status 
quo, or it might uphold national action which deprived 
persons, corporations or communities of life, liberty or 
property without due process of law, or which impaired 
the obligation of contracts, or which imposed compul- 
sion in religious matters, or it might force the parties 
to make a political compromise. If an unsatisfactory 
decision should be made by such a tribunal and if the 
American people should be met by the claim that they 
had consented by these treaties to the exercise of arbi- 
trary power, they would doubtless answer, as their 
Revolutionary ancestors did when British philosophers 
asserted that they had consented to the exercise of 
legally unlimited power over them by the British Par- 
liament by reason of their having accepted royal char- 
ters, that consent to the exercise of legally unlimited 
power is a nullity, and acquiescence in the exercise of 
such power impossible. 

It may be said that the power exercised by the arbi- 
tral tribunal is judicial, and that judicial power is not 
arbitrary power. That, however, is not American doc- 
trine. We bind our courts by legal limitations, equally 
with our legislatures and our executives; for we know 
by experience that arbitrary power may be exercised 
under the judicial guise and that this is the most 
insidious of all forms of arbitrary power. 

But it may be said that it is impossible to impose on 
arbitral tribunals legal limitations like those which the 
people of the United States impose on their courts ; and 
particularly like those which they impose on the 
Supreme Court of the United States when it sits as a 
tribunal to settle disputes between States. In view of 
this supposed impossibility, it may be urged that it is 



250 The American Philosophy of Government 

necessary that we trust our lives and properties in 
disputes with other nations to tribunals with arbitrary 
power, as a course of action more conducive to peace 
and order than fighting. The experience of mankind, 
however, proves that the only decisions that keep the 
peace are those made by courts, that is, by tribunals 
which act as a part of the machinery of a political 
society, which are legally limited by the fundamental 
principles of supreme universal law duly formulated, 
and by the organic constitution of the society; and 
which apply and interpret the law of the society in 
cases duly brought before them. Decisions of persons 
or tribunals having arbitrary power lead quite as often 
to disorder as to order. 

It therefore becomes important that we examine the 
proposition that it is impossible that tribunals for 
settling disputes between nations should have legally 
limited powers. This requires an investigation of some 
of the fundamental ideas which yet prevail in some 
quarters concerning the relations between independent 
states. 

These relations, as explained by many publicists, are 
based upon two contradictory principles. Independent 
states are for some purposes considered as persons not 
living in society, who fight or agree. When so consid- 
ered, their relations are ' 'international." They are also 
for some purposes considered as social units and as 
component parts of the society of nations. When so 
considered, their relations are under a "law," which is 
imposed on them by the society of nations. In political 
thinking, these two ideas are continually attempted to 
be blended. Jeremy Bentham in 1780 invented the 
expression "international law," and this expression has 
come into quite general though not universal use. We 
have become so habituated to it that we do not stop 



Limitation of Arbitral Tribunals 251 

to consider that it is meaningless. Law comes from a 
political society which is above the persons who are 
subject to the law; it never comes from "between" or 
1 'among' ' the persons who are subject to the law. There 
may be a law of the society of nations, which binds 
the nations as members of the society; and there may 
be a law of a group of nations united so as to form a 
particular society of nations ; but there can be no other 
kind of "law" which is of any effect upon the. nations. 
The expression "international law" is as unthinkable 
as a black white. 

The Constitution uses the expression "the law of 
nations" instead of "international law." The former 
expression occurs in the 10th clause of Article I, Section 
8, by which Congress is given power to "define and 
punish . . . offenses against the law of nations." 

The vogue which the expression "international law" 
has had is doubtless due to the confusion of the idea 
of agreement and the idea of law — the fallacy lying in 
the assumption that law is essentially nothing but 
agreement. Recent investigations and study in juris- 
prudence have shown the true connection between the 
two ideas. Law, in the sense of jurisprudence, is a 
body of rules of action or relationship formulated by 
a political society, which the society enforces upon its 
members. The society exists by agreement and its 
action is determined by the agreement of those who have 
the majority of power. But the political society al- 
ways intervenes between the agreement and the law, — 
the agreement makes the political society, and the 
political society recognizes or makes the law. The 
moment we should attempt to speak of interpersonal 
law, the absurdity of the expression "international law" 
would become apparent ; for our common sense and ex- 
perience would immediately show us that we do not 



252 The American Philosophy of Government 

obey our agreements, and that we do obey the law 
which the political society of which we are members 
imposes on us — the political society being established, 
maintained and operated by our agreements. 

If we dismiss the idea of "international law," and 
take as the basis of our political thinking the proposition 
that the only law which can bind a nation is that which 
is imposed upon it by a political society of nations, of 
which it is a member, the difficulty about there being 
legal limitations upon tribunals which decide disputes 
between nations begins to disappear. A logical basis 
for legal limitations upon such tribunals is established 
and the difficulty which remains is, to define the legal 
limitations. 

A particular society or union of nations may be or- 
ganized for legislative purposes, or for executive pur- 
poses, or for judicial purposes, or for all of them. If 
two or more nations should agree to establish a court 
for the settlement of disputes between them, they 
would be united in a judicial union. A judicial union 
would imply the establishment by the political society 
composed of the uniting nations of a common federal 
law emanating from the union. 

It would be possible, therefore, for the United States, 
Great Britain and France, and other nations which 
they might associate with them, to enter into a judicial 
union for the purpose of having disputes between them 
settled by a common tribunal appointed by them. 
Indeed, there may be a question whether or not the 
legal effect of the pending treaties, if they are ratified 
and are held constitutional, will not be to establish a 
judicial union between these three nations, in which case 
the arbitral tribunal would, according to American doc- 
trine, be legally limited by the principles of the supreme 
universal law and by the constitution and laws of the 



Limitation of Arbitral Tribunals 253 

union. As bearing on this question, the provision mak- 
ing the arbitration arrangement permanent, with a 
reservation of the right of secession, may be important. 
This provision, as it appears in the proposed treaty 
with Great Britain, reads (Articles VI and VII) : 

"This treaty shall supersede the arbitration treaty con- 
cluded between the high contracting parties on April 4, 
1908. . . . The present treaty shall be ratified by the 
President of the United States of America, by and with the 
advice and consent of the Senate thereof, and by His 
Britannic Majesty. The ratifications shall be exchanged at 
Washington as soon as possible, and the treaty shall take 
effect on the date of the exchange of its ratifications. It 
shall thereafter remain in force continuously unless and 
until terminated by twenty-four months' written notice 
given by either high contracting party to the other." 

If the effect of the pending treaties is to establish 
a judicial union of three nations of which the United 
States is to be a member, the question arises whether 
such a union can constitutionally be formed by treaty. 
It is an act of great importance and solemnity for the 
United States to enter into a union with foreign na- 
tions for judicial purposes. Moreover, the Constitution 
(Article IV, sec. 3) provides: 

" New States may be admitted by the Congress into this 
Union; but no State shall be formed or erected within the 
jurisdiction of any other State; nor any State be formed by 
the junction of two or more States, or parts of States, with- 
out the consent of the Legislatures of the States concerned 
as well as of the Congress." 

When any change is to be made in the component 
parts of the Union which exists under the Constitution, 
or in the composition of the Union, therefore, Congress 



254 The American Philosophy of Government 

must act. Can it be possible that when it is a question 
of the United States making itself a component part 
of a Union, of which two great European states are 
to be the other members, any less authority than the 
Congress of the United States can decide? 

The Constitution also provides (Article I, sec. 8) : 

' ' The Congress shall have power ... to declare war 
... to raise and. support armies ... to provide and 
maintain a navy ... to make all laws which shall be 
necessary for carrying into execution the foregoing powers." 

It also provides (Article II, sec. 2) : 

" The President . . . shall have power, by and with the 
advice and consent of the Senate, to make treaties, provided 
two-thirds of the Senators present concur." 

A treaty is an agreement with a foreign power regard- 
ing a particular dispute. The power to delegate to 
a tribunal the settlement of a dispute presupposes the 
inability of the President and Senate to make a treaty 
which shall itself settle the dispute, and a choice by 
the nation between a settlement of the dispute by war 
and a settlement by judicial means. It seems as reason- 
able to hold that the Constitution places the responsi- 
bility for making such a choice on the Congress as an 
incident to the war power, as on the President and 
Senate as an incident to the treaty-making power. The 
efficiency of judicial settlement of international dis- 
putes depends upon the existence of a public sentiment 
in favor of such settlement; it can never be made cer- 
tain that the public sentiment is in favor of judicial 
settlement either in a particular case involving questions 
of great public interest or as a general policy, until the 
House of Representatives, which speaks for the whole 



Limitation of Arbitral Tribunals 255 

people of the United States, and the President and 
Senate, have declared in favor of this method of settle- 
ment. The doubt, if there be one, whether the right 
to make this choice belongs to the whole Government 
or to a part of it, should, it would seem, be resolved 
in favor of the whole Government; for only by the 
action of the whole Government can it be certain that 
in cases where treaty is impossible the public sentiment 
of the nation is in favor of judicial settlement rather 
than war. It would be consistent not only with the 
Constitution, but with the advanced thought of the 
civilized world, if treaties providing for general arbitra- 
tion of international disputes, or for the arbitration of 
particular disputes which are of public interest, should, 
after having been formulated and ratified by the Presi- 
dent and Senate, be finally ratified and sanctioned by an 
Act of Congress passed after the existence of a public 
sentiment in favor of the treaty had been ascertained. 

It seems to have been the original understanding on 
the part of the British Government that any arrange- 
ment for general arbitration made by Great Britain 
with the United States would be in the nature of a 
judicial union or an exercise of the war-and-peace 
powers, requiring the sanction of Parliament, acting 
on a special mandate from the people of Great Britain. 
On March 13, 191 1, Sir Edward Grey, Secretary of 
State for Foreign Affairs, speaking in the House of 
Commons on a motion to reduce the Army and Navy 
estimates, referred to the suggestion made by President 
Taft that the United States should enter into agree- 
ments "with some other nations to abide by the adju- 
dication of International Arbitration Courts in every 
issue which cannot be settled by this nation, no matter 
what it involves, whether honor, territory, or money" 
for the purpose of "demonstrating that it is possible 



256 The American Philosophy of Government 

for two nations at least to establish between them the 
same system which through the process of law has 
existed between two individuals under government." 

(These quotations and that immediately following 
are from the official Parliamentary Debates. (The 
Parliamentary Debates, Official Report, 5th Series, 
vol. 22, pp. 1 989-1 99 1.) The words of President 
Taft quoted by Sir Edward Grey were delivered be- 
fore the American Society for Judicial Settlement of 
International Disputes on December 17, 1910. In 
the official report of the Proceedings of that Society 
(p. 353), President Taft's words are thus given: 

"If now we can negotiate and put through a posi- 
tive agreement with some great nation to abide the 
adjudication of an international arbitral court in 
every issue which cannot be settled by negotiation, 
no matter what it involves, whether honor, territory, 
or money, we shall have made a long step forward 
by demonstrating that it is possible for two nations 
at least to establish as between them the same system 
of due process of law that exists between individuals 
under a government.") In that speech, Sir Edward 
Grey said: 

"These are bold and courageous words. We have no 
proposal before us, and unless public opinion will rise to 
the level of discussing a proposal of that kind, not with 
reference to charges of inconsistency, not with reference to 
what one nation or the other is going to do by some agree- 
ment, but unless they rise to the height of discussing as a 
great movement in the opinion of the world, it cannot be 
carried out. But supposing it took place, and two of the 
greatest nations in the world were to make it clear to the 
world by agreement such as that, that in no circumstances 
were they going to war again, I venture to say that the 
effect on the world at large of the example would be one 



Limitation of Arbitral Tribunals 257 

which would be bound to have beneficial consequences. 
. . . Entering into an agreement of that kind there would 
be great risks entailed. If you agree to refer everything to 
arbitration as the President of the United States has said, 
you must be prepared to take certain risks. You must be 
prepared for some sacrifices of national pride. An agree- 
ment of that kind so sweeping as that, if proposed to us, 
we should be delighted to have such a proposal, but I 
should feel it was something so momentous and so far- 
reaching in its possible consequences that it would require 
not only the signature of both Governments, but the delib- 
erate and deciding sanction of Parliament. That, I believe, 
would be obtained. I know that to bring about changes 
of this kind public opinion has to rise to a high plane, 
higher than it can rise in ordinary times, and higher than 
some hon. Members opposite, I imagine, think it can 
ever rise. In ordinary times that may be true, but the times 
are not ordinary with this expenditure, and they will 
become still less ordinary as this expenditure increases. 
. , . I think it is not impossible, though I admit that in 
a case of such an enormous change progress may be slow, 
that the public opinion of the world at large may insist, if 
it is fortunate enough to find leaders who have the courage — 
the sort of courage which has been shown in the utterances 
I have quoted in this House — upon finding relief in this 
direction. Some armies and navies would remain, no doubt, 
but they would remain then not in rivalry with each other, 
but as the police of the world. Some hon. Members say 
we should not live to see the day. I dare say we should 
not, . . . but I think we shall live to see some progress 
made." 

Any arrangement with Great Britain which requires 
''the deliberate and deciding sanction of Parliament" 
registering an ascertained state of British public opinion, 
must also require the deliberate and deciding sanction 
of the Congress of the United States, registering an 
ascertained state of public opinion in this country. 
17 



258 The American Philosophy of Government 

Under the Constitutional Law of France, also, it 
seems that it may be reasonably held that a treaty 
establishing a system of arbitration between France and 
other nations requires the sanction of the French Par- 
liament. The Constitutional Law of France on the 
Relations of the Public Powers, enacted July 16, 1875, 
(Article 8) provides: 

" The President of the Republic shall negotiate and ratify 
treaties. He shall give information regarding them to the 
Chambers as soon as the interests and safety of the State 
permit. 

1 ' Treaties of peace and of commerce, treaties which involve 
the finances of the State, those relating to the person and 
property of French citizens in foreign countries, shall be 
ratified only after having been voted by the two Chambers. 

" No cession, exchange or annexation of territory shall take 
place except by virtue of a law." 

A treaty purporting to establish a permanent system 
of general arbitration with another nation would, it 
would seem, involve all the subjects mentioned in this 
law, and would hence require the concurrent action of 
the President of the French Republic and the two Cham- 
bers — that is, in effect, of the French Parliament. 

Nor does it seem that there is any less need of delib- 
erate and solemn action by the Legislatures of the con- 
tracting parties because the proposed treaties, instead 
of covering all disputes, cover all "justiciable" disputes, 
especially when the contracting nations substantially 
renounce their individual right to place their own con- 
struction on the word "justiciable." The principle laid 
down by Sir Edward Grey seems clearly to apply to 
the pending treaties, and to require "the deliberate and 
deciding sanction" of the Legislatures of the nations 
which enter into the judicial union, acting upon a spe- 



Limitation of Arbitral Tribunals 259 

cial mandate from the people of each of the nations, 
after the meaning and effect of the treaties have been 
fully ascertained and made clear to them. 

It is the practice of civilized nations that the question 
whether a nation shall form a union with other nations 
shall be settled either by the Legislature or by a Con- 
stitutional Convention. It seems clear that no part of 
our Government, except the Congress, can possibly 
have this power, as the organ of the nation for this 
purpose, under the Constitution. If Congress has not 
this power, such a union could be effected only by 
amendment of the Constitution. 

But, assuming the constitutional power of Congress 
to bind the nation in a judicial union with other nations, 
such a course seems to be contrary to American policy, 
inexpedient and unnecessary. 

President Washington's Farewell Address applies 
to-day with the same force as in 1796. The danger of 
losing our national heritage of political principle and 
our national honor and independence by political union 
or permanent alliance with foreign nations — especially 
with those whose fundamental ideas are different from 
our own, — is the same now as it was then. It is true 
now, as it was then, that ' ' Europe has a set of primary 
interests which to us have none or a very remote 
relation." The European states still live unsocially, 
and their relations are governed by the principle of 
military strategy known as "the balance of power." 
Our Fundamental Constitution — the preamble of the 
Declaration of Independence — is regarded by European 
statesmen as meaningless. The state is still assumed 
by European publicists to be the source of all law and 
hence not subject to law. The individual has no rights 
against the Parliament, but only such privileges and 
immunities as the Parliament may grant to him. We 



260 The American Philosophy of Government 

can neither prove or disprove our doctrine ; nor can the 
Europeans prove or disprove theirs. It is a matter of 
accepting or declining to accept as "self-evident " cer- 
tain propositions which can neither be proved nor 
disproved. There must be a conversion of the Euro- 
peans to the American doctrine, or a conversion of the 
Americans to the European doctrine. Between the 
doctrine of legally limited power and that of legally 
unlimited power there is no half-way house. A political 
union for judicial purposes between a nation which 
regards all governmental power as legally limited and 
a nation which holds that a part of the government is 
legally unlimited, is clearly contrary to American policy 
and has a tendency to imperil and ultimately to over- 
throw American institutions. It is still clearly our 
true policy, as it was in Washington's day, "to steer 
clear of permanent alliances with any portion of the 
foreign world," and to regard as our friends and per- 
manent allies all the nations of the world ; dealing with 
them, however, on such terms that we shall not sacrifice 
or imperil the fundamental doctrine of legally limited 
governmental power for which this nation stands, and 
which we believe to be essential to peace and justice. 

The formation of a judicial union with particular 
nations is thus seen to be contrary to American policy. 
It seems clearly also to be inexpedient. Judicial unions 
of particular nations are likely to convert themselves 
into "Holy Alliances." They tend to establish a law 
for the particular union which is inconsistent with the 
general juridical sentiment of mankind ; to become self- 
righteous ; and to attempt to force their ideas of law and 
political doctrine upon the rest of the world. If the 
United States, Great Britain and France were to enter 
into a judicial union, could we reasonably blame any 
outsider nation which should declare its own "Monroe 



Limitation of Arbitral Tribunals 261 

Doctrine" in order to protect its legal and political 
ideas from invasion by the union? We think that the 
American system deserves to be protected, and we are 
determined to protect it, not only in our own interests 
but in the interests of the world at large. But the 
strength of our position lies in the doctrine which we 
are protecting and in our wholly defensive attitude. 
If we form a judicial union with nations which do not 
hold the political principles which the Monroe Doctrine 
protects, we may well be charged, by outsider nations, 
with having abandoned our fundamental principles, 
our defensive attitude, and the Monroe Doctrine itself. 
Moreover, we may well be considered as having formed 
a "Holy Alliance" with these nations to propagate such 
a faith in legal and political matters as the whole 
Alliance may decide to be suitable for itself and the 
rest of the world to hold. Thus a particular union for 
judicial purposes might lead to jealousy and war, 
instead of to peace. 

A particular union is thus seen to be inexpedient, as 
well as contrary to American policy. It appears also 
that it is unnecessary, since there may be a more simple 
and practicable road to the arbitration or judicial set- 
tlement of disputes between nations by legally limited 
tribunals, — which, it appears, ought to be the goal of our 
efforts. There is one union or society of which any na- 
tion may be a member, without creating any jealousy or 
imperilling its fundamental legal and political doctrines. 
This is the union or society of all the nations and peoples 
of the world, which has already received the name of 
"the society of nations." Scholars already recognize 
the existence of this society and are beginning to regard 
that which has been called "international law" as the 
law of the society of nations. To make this society a 
political fact and a part of practical, every-day politics, 



262 The American Philosophy of Government 

nothing is required except that the nations should 
recognize the existence of this political society and their 
membership in it. They will then be bound by the 
customary law of the society, as it is now formulated 
and as it may hereafter be formulated. For the govern- 
ment of political societies under customary law, courts 
are the only necessary organs. They ascertain custom, 
determine its reasonableness, and by their adoption and 
application of reasonable custom authenticate it as a 
part of the customary law of the society. Such courts 
are legally limited by the principles of the supreme 
universal law, by the existing unwritten constitution 
and customary law of the society, and by all customary 
law which, under these limitations, they assist in formu- 
lating. The customary law, in the case of the society 
of nations, is to all intents and purposes a federal law 
of the society of nations, since it relates only to those 
matters which are common to all the nations or are 
beyond the competency of any one. That which we 
call "international law" is in fact the federal customary 
law of the society of nations, formulated without a 
definite legislature and enforced without a definite 
executive. For the proper development of customary 
law, courts and tribunals with advisory powers seem 
likely to be more effective than those whose decisions 
purport to be enforced by physical or moral compulsion ; 
for customary law must ever rest largely in opinion, and 
the strength of customary law lies in its power to induce 
a voluntary obedience. Moreover, nations which hold 
to the doctrine of legally unlimited governmental power 
could reasonably accept advisory arbitration by tri- 
bunals recognizing themselves as legally limited, since 
it would not be inconsistent with their doctrine to take 
advice concerning the settlement of their disputes with 
other nations. 



Limitation of Arbitral Tribunals 263 

For the purpose of bringing about the judicial set- 
tlement of disputes between nations by legally limited 
tribunals, any one nation may act alone in its recogni- 
tion of the society of nations and its membership there- 
in; or several may act simultaneously. Considering the 
fact that this nation stands for legal limitations upon 
all governmental power, it seems that it might properly 
take the lead, leaving the nations which do not accept 
this doctrine to take such action as they deem proper. 
This might require that this nation should offer to 
submit to advisory arbitration all disputes of every kind 
with any nation, on the understanding that the arbi- 
trators were to regard themselves as legally limited by 
the principle of universal law that no person is to be 
deprived of his life, liberty or property by any political 
society or government without due process of law, and, 
subject to this law, by all the customary organic and 
regulative law of the society of nations, as the same is 
now formulated under the name of ' 'international law" 
and as it may be formulated by the authentication of 
reasonable customs — the existence of customs and their 
reasonableness being determined by having regard to 
and respect for all existing accepted customs, the prin- 
ciples of all civilized systems of laws, and the precedents 
under these systems. Such an offer might be made by 
a joint resolution of both Houses of Congress and a 
Presidential announcement contained in a Presidential 
Message, in substantially the same way as the Monroe 
Doctrine was promulgated. The present Hague Tri- 
bunal and the Convention for the Pacific Settlement 
of International Disputes could be utilized, and thus 
the necessity of entering into treaties could be avoided, 
unless it should be considered necessary under the 
Constitution that the Senate should supervise the 
''special agreement" in each case. 



264 The American Philosophy of Government 

Such an offer by the United States might well consti- 
tute a basis for the consideration by the next Hague 
Conference of the question of legal limitation of arbitral 
tribunals; for it seems clear that the success or failure 
of arbitration of the disputes of nations depends on 
whether or not the arbitral tribunals act under legal 
limitations. Only by making the society of nations a 
fact of practical politics, it would seem, can such legal 
limitations exist. Leadership by the United States in 
the movement to recognize and establish the society of 
nations and to institute a general practice of advisory 
arbitration under the reasonable customary law of that 
society, would be consistent with the policy of self- 
regarding altruism which Washington advised when in 
his Farewell Address he said : 

"Harmony, and a liberal intercourse with all nations, 
are recommended by policy, humanity, and interest." 

If, however, this course should seem presumptuous 
on the part of this nation, or likely to be interpreted as 
an attempt to force the American system on the rest 
of the world, two other courses are open — either to 
adopt the pending treaties with the clause omitted 
which attempts to delegate the power of decision re- 
garding justiciability to a Joint High Commission, as 
the majority of the Senate Committee on Foreign 
Relations propose, — adding, out of caution, the reserva- 
tion proposed by the minority of the Committee, with- 
drawing from arbitration "any question which depends 
upon or involves the traditional attitude of the United 
States concerning American questions, or other purely 
governmental policy"; or to renew the existing treaties 
until a date some time after the close of the next Hague 
Conference. The latter course seems the safer one. 
The pending treaties, even if amended so as to reserve 
to the President and Senate power to withdraw cases 



Limitation of Arbitral Tribunals 265 

from arbitration as non-justiciable, leave it uncertain 
what cases may be withdrawn. Moreover, they may 
involve this nation indirectly in what will be in fact a 
judicial union with particular nations. They may also 
commit us to the European system of legally unlimited 
governmental power, for they imply that the arbitrators 
may decide cases on their views of "law or equity" 
without first applying the fundamental principles se- 
curing the rights of the individual and without regard 
to those great organic national and international poli- 
cies and dispositions by which the international world 
is held together, and which form its unwritten Consti- 
tution. The existing treaties, on the other hand, leave 
it open to this nation to withdraw from arbitration any 
disputes which involve these fundamental principles, 
or which, if decided in a particular manner, might 
endanger these organic policies and dispositions. They 
thus enable us to protect our system, our national 
policies and the organic policies and dispositions of the 
whole world. 

It seems probable that the question of limitation of 
arbitral tribunals will be open for discussion at the next 
Hague Conference, even if this nation should hold to 
the existing treaties. There seems to be a general desire 
among the nations that what is called the "codification 
of international law" shall be considered by the Con- 
ference. This will, it would seem, necessarily involve 
the question of legal limitation of states, governments, 
and arbitral tribunals. As a result of these discussions, 
it will be made clearer to us what ought to be our perma- 
nent policy in the matter of judicial settlement of inter- 
national disputes. The great danger to the cause of 
judicial settlement appears to lie in the adoption by the 
leading nations of an insufficiently considered policy 
which will subject them to legally unlimited power and 



266 The American Philosophy of Government 

will result in war rather than in peace, thus bringing 
judicial settlement into disrepute. The existing treaties 
have been successful. The only reason urged for chang- 
ing them is, that they do not go far enough to have an 
apparent effect in reducing war expenditure, and in 
preventing the loss of productive energy caused by war 
and the preparation for war. They are supported by 
the general public sentiment. Though they have not 
been ratified by the whole Government of each of the 
contracting nations, they can, if necessary, be so ratified 
without delay. The question of their constitutionality, 
so far as this nation is concerned, is not likely to be 
raised, and the reservation of broad discretionary power 
to withdraw cases from arbitration goes far to remove 
both constitutional objections and objections based on 
general principles. They afford us a safe ground on 
which to rest while we are considering what should be 
the next step. It seems that it will be wiser, before 
moving from our present secure position, to take time 
to consider our next step, waiting until we can have the 
benefit of the discussion and action of the next Hague 
Conference, so that when next we move, we may do so 
with confidence and unanimity, in the conviction that 
we are moving in the right direction. 



COOPERATION VERSUS COMPULSION IN 

THE ORGANIZATION OF THE 

SOCIETY OF NATIONS 



267 



COOPERATION VERSUS COMPULSION IN 
THE ORGANIZATION OF THE SO- 
CIETY OF NATIONS 

Reprinted from the Report of the Lake Mohonk Conference on In- 
ternational Arbitration. Delivered May 18th, 1916. 

DURING the past two years, perhaps as a result of 
the war, a plan has been seriously advanced and 
widely supported, for organizing a League of 
Nations on a compulsive basis; and within the same 
period, a plan of wider scope has been brought forward 
with equal seriousness and with a considerable follow- 
ing, for organizing the whole society of nations on a 
compulsive basis. 

One plan is that of the League to Enforce Peace. 
The other is that of the Fabian Society of London. 
The latter is a proposal for organizing all the na- 
tions compulsively under what is called a "super na- 
tional authority." This "supernational authority" is 
to have conciliative, judicial, legislative, and executive 
functions and organs, and is to enforce its decisions by 
means of an international police and by economic force. 
The plan recognizes and provides for large district 
unions of nations after the manner of the Pan-American 
Union — each district union cooperating with the others 
to uphold the society of nations and the supernational 
authority. The eight great powers are to occupy a 
special position in the whole organization, evidently as 
an Inner League to Enforce Peace. 

Such movements, so elaborated and so supported, 

269 



270 The American Philosophy of Government 

challenge our attention and consideration. It is our 
duty to examine them, and either to support them or 
to state our reasons for opposing them when suitable 
opportunity is given. For myself, I wish to say that 
my objections are not based on any notion or belief 
that the use of force is not justifiable in any case. 
The experience of mankind has, I believe, abundantly 
proved that in some kinds of organization, the use of 
force is necessary, and therefore justifiable. Whether 
force ought to be used in a particular political organi- 
zation depends upon whether it is possible to use it 
in that political society so as to effect the object of 
that society. In the society of nations, or in any 
League of nations, it seems to me that the use of force 
is impracticable, and therefore unjustifiable. I shall 
therefore attempt to base my objections on accepted 
principles of political science, and on considerations of 
practical politics. 

The plan of constitution of the proposed League to En- 
force Peace consists of a contracting clause and four 
articles. By the contracting clause, the United States 
and some other nations — evidently less than all — are to 
constitute themselves into a political union, described as 
a "League," the members binding themselves to the ob- 
servance of the four articles. No object is stated, no 
fundamental principles of individual and national right 
and duty are declared, no constitutional prohibitions 
designed to safeguard these fundamental principles are 
to be accepted by the signatory nations, no legal limita- 
tions of any kind upon the processes and organs pro- 
vided for in the four articles are established. 

The first article obligates the signatories to use the 
process of judicial settlement as respects all "justifiable" 
questions, subject only to the limitations of treaties — 
that is to say, in conformity with particular or general 



Cooperation versus Compulsion 271 

agreements — and provides for the institution of an 
organ, or organs, of adjudication called a "judicial 
tribunal." 

The second article obligates the signatories to use the 
process of conciliation as respects all other questions 
arising between them not settled by negotiation, and 
provides for the institution of an organ, or organs, of 
conciliation called "a council of conciliation." 

The third article obligates the signatories jointly to 
use forthwith both their economic and military forces 
against any one of their number that goes to war, or 
commits acts of hostility, against another of the signa- 
tories before any question arising shall be submitted as 
provided in the foregoing two articles, but fails to in- 
stitute any organ to determine, direct, and apply the 
force. 

The fourth article provides for the process of formu- 
lation and codification of rules of international law, 
which formulations and codifications, unless some sig- 
natory shall signify its dissent within a stated period, 
shall thereafter govern the decisions of the organ or 
organs described in the first article as "a judicial tri- 
bunal." The fourth article also obligates the signa- 
tories to institute an organ or organs of formulation 
and codification of the rules of international law, 
described as ' 'conferences." 

Such being the provisions of the proposed constitu- 
tion of the League of Nations to Enforce Peace, let us 
consider them briefly. 

In the first place, it must be recognized that no criti- 
cism is made or intended of the first, second, and fourth 
articles of the constitution taken by themselves. These 
articles provide for a general treaty binding the signa- 
tory nations to use processes and establish organs of 
adjudication, conciliation, and law-formulation. These 



272 The American Philosophy of Government 

processes and these organs are, as pointed out by Dr. 
John Bassett Moore, in his learned and inspiring address 
as the presiding officer of the last Mohonk Conference, 
the normal processes and organs of the cooperative and 
non-compulsive form of organization. This Conference 
incorporated in its platform of last year resolutions 
advocating the general application of these processes 
and the general establishment of these organs between 
nations. The League to Enforce Peace proposes to 
take the processes and organs which are peculiar to 
voluntary and cooperative organization and make them 
compulsive. The normal processes and organs of the 
compulsive form of organization are, of course, the 
legislative, the judicial, and the executive. The plan 
of the League to Enforce Peace is therefore an attempt 
to confuse two antithetical forms of organization. 

The plan assumes that a league of nations could 
compel any member nation to submission in a manner 
comparable with that by which a nation compels its 
citizens and societies to submission. A war waged by 
a coalition of nations having five hundred millions of 
population against a nation having a hundred millions 
would doubtless not be able to effect the submission of 
the nation. It would, however, mean practically uni- 
versal war, followed by universal bankruptcy and 
famine. In proposing a compulsion of nations, there- 
fore, the plan seems to propose an impossibility in fact. 

The constitution of the proposed League may be 
construed as providing that the League shall compel 
its members to submit to having their disputes with 
the members submitted to adjudication or conciliation 
or as providing that the League shall punish or abolish 
any nation refusing to submit to adjudication or con- 
ciliation. If it is to be construed as proposing to compel 
submission to conciliation, it proposes an impossibility 



Cooperation versus Compulsion 273 

in the nature of things. Such use of force is negated by 
the definition of conciliation. The word ' 'conciliation," 
is the one selected by the English-speaking part of the 
world to express a wholly voluntary and persuasive 
process by which a person brings the influence of re- 
ligious belief, of experience, and of reason to bear upon 
the minds and consciences of other persons who are 
involved in a disagreement which is becoming, or has 
become, a dispute, and which may lead to violence. 
The sole purpose and end of conciliation is to induce 
the disagreeing or disputing parties voluntarily to agree. 
That force may be used in aid of conciliation is doubt- 
less true, but the plan does not so limit the use of force. 
It provides for conquering a nation and forcing it to 
submit to the League's will when it has refused to 
submit to adjudication or conciliation. This is a com- 
pulsion placing a nation at the mercy of the other mem- 
bers of the League whenever they, after condemning it 
as a violator of the League's constitution, succeed in 
conquering it. Such provisions for conquering and 
punishing, or perhaps dividing and abolishing nations, 
are abhorrent to modern ideas. 

The plan contains no provision for an executive to 
wield the force of the union, nor for a permanent legis- 
lature to determine how the force is to be used. The 
force used is to be joint force — that is, joint and several 
force — not united force. The experience of mankind 
in the use of the compulsive form of organization warns 
us of the dangers of the use of any force in any organized 
society, or union of organized societies, except the 
united force of the society in aid of the powers which 
are conferred on it by the members and which are con- 
stitutionally and legally limited by a fundamental con- 
stitution. When the law and will of the society is 
constitutionally formulated, declared, and applied by its 
18 



274 The American Philosophy of Government 

legislative, judicial, and executive organs, the executive, 
when necessary, wields the force of the society so as to 
make its law effective in determining the actions and 
relationships of the members in their own and the com- 
mon interest. An organized society or union wielding 
force without a definite legislative and executive organ 
to direct the force in execution of the legally limited 
judgment and will of the society, is a political anomaly 
of the kind aptly, described by Jefferson as an "entangl- 
ing alliance." It is an alliance, because it is an imper- 
fect and defective union; it is entangling because it 
involves the members of the imperfect and defective 
union in a tangled mass of relationships and activities, 
for the disentanglement of which force is used without 
adequate determination, direction, and limitation, and 
without those arrangements for solving disagreements 
before they reach the acute stage of dispute, which is 
essential to the orderly, economical, and efficient use 
of force. 

As illustrating the possibilities of entanglement, it 
is only necessary to consider some of the questions 
which each of the signatory nations in the proposed 
League would have to decide for itself in order that 
their economic and military forces might be used joint- 
ly. What "question" in a given case, is to be "sub- 
mitted," of all the various questions which are possible 
to be regarded as the questions in dispute when great 
nations or great groups of nations stand threatening 
each other and on the verge of war? What is a "sub- 
mission" of a dispute to adjudication, or to conciliation? 
What is an act of hostility? What is economic force? 
How shall it be used in a given case? What shall hap- 
pen if both or all the nations between whom questions 
arise insist that they will not submit their dispute to 
adjudication or conciliation, and proceed to fight re- 



Cooperation versus Compulsion 275 

gardless of the rest? Is it to be permitted, when both 
parties to the dispute violate their obligations as mem- 
bers of the League and engage in war, that the others 
may be neutral, or must the non-disputants fight both 
the disputants? Would any member of the League 
which felt that both belligerents had violated its pro- 
visions be able to claim any right or perform any duties 
as a neutral, if other nations of the League held that 
only one of the belligerents had violated the constitution 
of the League? 

The proposal that the members of the League shall 
use joint economic and military force recognizes and 
legalizes the use of military force to bring into operation 
the destructive economic forces of cold and hunger. 
Economic force used to compel submission, if morally 
justifiable at all, can only be justified when used as 
humanely as possible by a skillful legislature and execu- 
tive of a responsible organized society. In times of 
peace economic force may be so directed as to affect 
classes of people to the benefit of all. In times of war, 
however, it can only be used to compel submission, and 
inevitably injures both combatants and non-comba- 
tants. Economic force used in war, or as a substitute 
for military force in compelling submission, destroys 
alike infants, children, women, the sick, the aged, as 
well as the men of fighting age and ability. The horrors 
of its use far surpass the horrors of war between armed 
men. The use of economic force to compel submission — 
whether by encirclement and siege on land, by blockade 
of commercial ports, by destroying unarmed ships of 
commerce, by general embargo, by general prohibitive 
tariff, or by prohibitive regulations designed to effect 
a boycott — recoils upon those who use it. Not only 
does such use of economic force generally involve the 
nation using it in economic loss, but, since it involves 



276 The American Philosophy of Government 

the destruction of the weak, the innocent, and the 
helpless, it decivilizes the people of the nation using it 
and sets back civilization generally. 

The league, therefore, in order not to be an entangl- 
ing alliance, and in order not to extend the inhumane 
and decivilizing use of economic force, must have a 
permanent legislature and an executive. But if these 
are added, the plan becomes one for establishing a fed- 
eral state out of 'widely separated nations. The failure 
of the Imperial Federation movement in the British 
Empire shows that a federal state composed of non- 
contiguous states or nations is an impossibility. 

The proposed constitution of the league makes no 
reference to the greater part of the internal relation- 
ships of the league and none at all to its external rela- 
tionships. That such a league would arouse suspicion 
and jealousy on the part of the omitted nations goes 
without saying. The league, in order to have an op- 
portunity to be internally peaceful, would have to be 
so completely dominant over all nations outside it that 
those nations, either separately or in alliance, would 
never dare to attack it or any member of it. A domi- 
nant league would soon bring under its control all the 
weak and backward nations outside it, and the world 
would find itself in the hands of an oligarchy of widely 
separated nations ; an oligarchy which would itself ulti- 
mately be ruled by the nation or nations controlling 
the sea. 

The proposed constitution of the league, whether it 
provides for a weak league, a strong league, or a domi- 
nating league, is inconsistent with the whole concep- 
tion of the society of nations and of the law of nations 
recognized, formulated, and applied by that society, 
which has been slowly built up by the thought and 
effort of the world. A league of separated nations 



Cooperation versus Compulsion 277 

differs in nature from a league of contiguous nations. 
A league of separated nations must, in order to live, 
be dominant at sea, and probably also on the land and 
in the air. A league of contiguous nations forms a 
district in the whole organization of the earth's surface, 
and its local self-government is consistent with the local 
self-government of other district leagues. If the world 
were divided among several great district leagues or 
unions, they would tend to establish a supernational 
authority over all. A league of separated nations, on 
the other hand, would tend to be the supernational 
authority. If there were several such leagues, they 
would tend to fight until one of them became the super- 
national authority. 

Finally, the plan exposes all nations to new and real 
dangers. It is said by the promoters of the plan that the 
league is not dangerous to its members or to the nations 
outside of it, because the members will never be called 
upon to perform their obligation to go to war, since the 
mere existence of the league, and the fear of joint 
action, will keep the peace. The hard experience of 
many men and women who have entered into dangerous 
obligations on representations made to them by persons 
they have trusted, that they would never be required to 
fulfill their obligations, proves the fallaciousness of 
this plea. 

We conclude, therefore, that the proposed constitu- 
tion of the League to Enforce Peace is objectionable : 

Because it seeks to use the processes and organs 
which are suitable only for the voluntary and coopera- 
tive form of organization and to make them compulsive ; 

Because it proposes compulsion of great nations by a 
number of great nations, which is either an impossibility 
or a plan for universalizing war ; 

Because it either proposes to submit to possible de- 



278 The American Philosophy of Government 

struction nations adjudged by the League to have vio- 
lated its constitution and thereby ultimately to establish 
a world-monopoly, or to compel submission to concilia- 
tion, which is impossible in the nature of things ; 

Because it lacks a permanent legislature and an execu- 
tive, and thereby provides for an entangling alliance 
and an indefinite and disorderly extension of economic 
force, which, however applied, is essentially inhuman, 
since it operates upon non-combatants as well as 
combatants ; 

Because, if a permanent legislature and an executive 
be added, the plan becomes one for the establishment 
of a federal state composed of widely separated nations, 
which experience shows to be impossible; 

Because the League must either be weak and subject 
to external attack, or dominant over all outside nations ; 

Because the League, being composed of scattered 
nations, whether it be weak and precarious, or strong 
and dominant, is inconsistent with the whole conception 
of the society of nations and the law of nations, and 
tends to the destruction of international order and law ; 

Because the League is not, as its advocates would 
have us believe, a means of producing universal peace 
without danger to its members, but, if carried into 
effect, would be a political union of an imperfect and 
defective kind, involving its members in complicated 
and highly onerous relationships, and imposing upon 
each obligations, which it must fulfill at the risk of its 
destruction by the others. 

Are we then driven to the conclusion that there is no 
hope for a more economical, efficient, and therefore, 
peaceful , organization of the society of nations except 
by organizing that society into a federal state, which is 
clearly beyond the range of practical politics? I believe 
not. The possibilities of voluntary and cooperative 



Cooperation versus Compulsion 279 

organization have not yet been exhausted. In the 
industrial world as at present organized, enormous 
groups and societies and corporations carry on their 
operations and settle their disputes and strikes by 
wholly voluntary and conciliative methods. The suc- 
cess attained in this field should stimulate those who 
are interested in political organization on a vast scale 
to explore the possibilities of this new science of co- 
operative organization. The great industrial groups 
and societies of the modern industrial world resemble 
nations in that no compulsion of them by the state is 
possible, because their power rivals that of the state 
itself. But experience seems to have shown that not 
only is compulsion o± those vast societies impossible, 
but that it is also unnecessary, since the increasing rea- 
sonableness of democratically organized societies, under 
modern conditions of universal education, makes con- 
ciliation increasingly possible. It may well be that the 
voluntary processes and organs which have been found 
suitable for holding in cooperative union the great in- 
dustrial groups and societies may prove to be more ef- 
fective for holding the nations together in peace than 
the compulsive processes and organs which we use in 
our federal states. 

Moreover the nations of the world are now actually 
organized as a voluntary and cooperative union under 
the Convention for the Pacific Settlement of Interna- 
tional Disputes. That Convention, as adopted by the 
First Hague Conference, was accepted by all the nations 
of the world except three small nations — Costa Rica, 
Honduras, and Korea, the last named of which has 
since lost its independence. It was thus, to all intents 
and purposes, a unanimous and universal compact of 
all nations. It formed the signatory nations into a 
union by establishing certain processes for determining 



280 The American Philosophy of Government 

their relationships as members of the union and by 
instituting certain organs of the union to carry on these 
processes. It was thus a constitution. By its univer- 
sal acceptance, the union of all nations became a matter 
of political fact and practical politics. The union thus 
constituted was an organized political society with pro- 
cesses and organs of conciliation, arbitration, and law- 
formulation. The convention, as originally adopted, 
still holds, although the revisions and amendments made 
at the Second Conference in 1907 have not yet received 
unanimous adoption. 

The union of nations, thus constituted, was, how- 
ever, a very imperfect union. The processes were un- 
scientific, and the organs were inadequate. These 
processes may be made more scientific, and these or- 
gans may be made more adequate. To do this would 
be doing, in a new way and on a broader scale, what 
our American statesmen did in 1787 — it would be the 
formation of "a more perfect union." 

The perfecting of the cooperative union of the na- 
tions will require, not only the scientific development 
and the local extension of the processes of conciliation, 
adjudication, and law-formulation throughout the 
union, but also the removal of the obstacles to the co- 
operative life and action of the nations. The principal 
obstacles, at the present time, are the external monopo- 
lies of nations, and secret agreements. These external 
monopolies may be abolished by means of universal 
agreements for the common and equal use by nations 
of the sea and the air, which are by nature the common 
property of all nations; by the extension of the areas 
of federal or cooperative union on the land; and by 
recognizing the "open door" in colonies, dependencies, 
and spheres of influence. Secret agreements can, it 
would seem, only be abolished by the gradual estab- 



Cooperation versus Compulsion 281 

lishment of the principle that all secret agreements are 
void for all purposes, as contrary to public policy. 

It may thus be possible to make the existing union 
of nations so effective that economic or military force 
will not be required. If, however, such force should be 
found necessary, a basis will have been laid for the 
establishment of a suitable and legally limited super- 
national authority to wield the force of the union with 
skill and efficiency, and such a supernational authority 
will no doubt in due time be evolved. 

The practical course, therefore, is, it would seem, to 
take as our basis of thought and action the present 
written constitution of the cooperative union of nations 
— the Convention for the Pacific Settlement of Inter- 
national Disputes as originally adopted, the one unani- 
mous act which has ever happened among men, so far 
as appears, since the dawn of history. On that founda- 
tion, it may be possible, by taking thought and pro- 
ceeding with careful steps, gradually to evolve a more 
and more perfect cooperative union of the nations, 
which shall secure to them order and law, and permit 
them to live in peace. 

Washington, D. C, May 15, 19 16. 



COOPERATIVE UNION OF NATIONS 



283 



COOPERATIVE UNION OF NATIONS 

Self-interest, not fear; self-aggrandizement of all by utilizing equita- 
bly the resources which are properly common to all — that is the funda- 
mental principle or motive upon which cooperative union of nations is 
already working and may be internationally developed, according to Mr. 
Snow. Readers of The World Court Magazine will recall Mr. Snow's 
suggestive article on "An International Directorate" last October. He 
now contributes the following striking study of the possibilities of 
cooperative union and the functions of the directorate in such a union. 

Reprinted from The World Court Magazine, April, 191 8 

11 It would bind together by means of continuous, friendly, and help- 
ful correspondence, not merely the governments of the nations, but the 
legislatures and, through them, the peoples. It would be an agency of 
persuasive influence, formed by the nations, of the nations, and for the 
nations." — From an address at a dinner in honor of Senator France of 
Maryland, New York City, May 1920. 

DURING the last century, plans for organizing the 
nations as a union were generally modeled upon 
the Constitution of the United States, and pro- 
vided for forming them into a federal state. Of late 
years, the tendency has been to use the Articles of 
Confederation as the model, and the proposals made 
have generally had for their purpose the institution of 
a confederation or league of nations. 

The federal state plan seems to be losing ground. 
The reason apparently is that no nation is now willing, 
or is ever likely to be willing, to subject itself, even as 
respects those matters which are of common concern 
to all nations, to a federal government, which necessa- 
rily acts through a majority of the nations and whose 
statutes are enforced by a federal army and navy. 

285 



286 The American Philosophy of Government 

Such a majority would be composed of nations all of 
which would be diverse in race, tradition, character 
and civilization from the nation affected, and many or 
most of which would be widely separated from the 
nation affected and from each other. A majority so 
constituted would, it is feared, be incapacitated, by the 
conditions under which it would necessarily act, from 
making decisions and issuing statutory commands 
which would be so just and equitable that they could 
be executed against the members by federal armed 
forces. 

The plan for a confederation or league of nations has 
widespread support and approval. A confederation or 
league is, however, open to objection because of the 
lack of leadership and direction. In lieu of leadership, 
reliance is placed upon action of the nations in common 
in each emergency as it arises. By such action in com- 
mon it is impossible to make adequate provision for 
preventing friction or avoiding dispute between the 
members, and all that can be done is to settle disputes 
after they have arisen. The settlement of disputes is of 
course desirable, but it is far more desirable to prevent 
friction from arising or, if that be impossible, to prevent 
it from taking the acute form of dispute. History 
shows that a confederation or league either disintegrates 
or converts itself into a more perfect unity. The plan 
for a confederation or league of nations can therefore, 
it would seem, reasonably be supported only as a tem- 
porary expedient, and as a half-way house towards a 
more perfect and ultimate form of union which is 
planned and foreseen, and which may reasonably be 
regarded as attainable in the not remote future. As a 
matter of fact this plan is generally advocated, not as 
an ultimate solution but as a temporary expedient. 
It thus becomes material to any argument in favor of 



Cooperative Union 287 

a league of nations, that the ultimate form which the 
union of nations ought to have should be specified. If, 
in the course of the study of the form of union which is 
to supersede the league, a kind of permanent union 
should be discovered which should be found to be 
satisfactory to the nations and thus capable of immedi- 
ate adoption, so much the better. In that case a league 
of nations would cease to be expedient or desirable. 

The experience of societies and corporations for eco- 
nomic and social purposes in forming themselves into 
unions has shown that there is a kind of union, which 
may be described as cooperative. In 19 14, there were 
about four hundred international unions of a coopera- 
tive and non-political character. This kind of union is 
plainly capable of political application, but it has as 
yet been so applied only tentatively and experimentally, 
and its full potentiality for political purposes has there- 
fore not yet been determined. The most conspicuous 
example of cooperative union in the political world 
would seem to be the Pan-American Union, a very 
useful and successful organization, though yet inten- 
tionally undeveloped, out of caution, so that the limit 
of its full potentiality is yet unknown. Some writers 
hold — doubtless correctly — that the nations, by enter- 
ing with practical unanimity into the Hague Convention 
for the Pacific Settlement of International Disputes, 
formed themselves, by the necessary implications of 
that Convention, into a cooperative union, of which the 
Permanent Court of Arbitration, the Permanent Ad- 
ministrative Council and the International Bureau are 
the present organs. If this be the legal effect of that 
Convention, — as it would clearly seem to be, — the 
nations are now in law united in a cooperative union of 
an imperfect and inadequate character, but capable of 
indefinite development. 



288 The American Philosophy of Government 

The fundamental principle or self-evident truth on 
which cooperative union is based seems to be that 
normal persons are influenced as respects their action 
and relationship by self-interest and not by fear; and 
that the normal motive is the innate desire for self- 
aggrandizement. A cooperative union thus frankly and 
openly appeals to self-interest and devotes itself to 
enabling each unit to attain self-aggrandizement to the 
utmost extent possible. It holds that self-aggrandize- 
ment of any one person or nation is dependent upon the 
self-aggrandizement of all other persons and nations. 
Abnormal persons or nations, which through lack of 
development or disease are incapable of realizing their 
own real self-interest and of having the desire of reason- 
able self-aggrandizement, it seeks to restore to normal- 
ity, using such restraint as may be necessary for the 
purpose. 

A cooperative union of nations would thus have for 
its object the self-aggrandizement of all nations, and 
it would attain this object by devising plans, promul- 
gating counsel, and persuading to voluntary action, so 
as to enable all nations to utilize equitably the resources 
which are properly common to them all, for universal 
self- aggrandizement . 

It will be objected that the cooperative principle is 
too abstruse for the average man, and so much at 
variance with the notions of the average statesman and 
publicist as not to be capable of application in practical 
politics. To this it may be answered that even before 
the war the cooperative principle had made great 
headway in the world, and that though the war has 
temporarily divided the world into two groups, yet 
during the war the progress of the principle within each 
group has been even more marked. As the principle, 
if correct, is of universal application, it is reasonable to 



Cooperative Union 289 

hope that, after the war, a universal application may 
sooner or later be possible. 

The organ or agency through which a cooperative 
society or union directs its effort towards the common 
object is not strictly a "government," since that word 
in its accepted and practically universal usage implies 
power not only to induce voluntary action and relation- 
ship towards a common object, but also to compel 
involuntary action and relationship towards this object. 
The word ' 'directorate" seems most appropriate, inas- 
much as the organ by which our modern cooperative 
business, charitable, social and scientific associations 
and corporations act, is generally called a board of 
directors, or a directorate. The French use of the word 
directoire to describe the post-revolutionary French 
government, and the European use of the word "di- 
rectory" to describe the monarchial alliance to govern 
the world which arose out of the Congress of Vienna, 
militate against the use of that word. But "directo- 
rate" in its modern sense has taken on a meaning quite 
distinct from "directory," and the verb "to direct" 
seems from its derivation to contain the idea of personal 
action, setting the diverse actions of other persons in 
the right course, by counsel and persuasion on the one 
part and consent on the other. 

The directorate might have any form which the 
nations should agree upon, but a directorate of the typ- 
ical form would seem to be exceedingly simple — con- 
sisting of a general representative committee and a 
small appointed managing or executive committee. 
Most cooperative societies and cooperative unions of 
societies seem to find this form the most economical and 
efficient. The function of the directorate of a coopera- 
tive union of nations would be to give correct counsel 
to the nations. The appointed managing committee 
19 



290 The American Philosophy of Government 

would be best adapted for giving counsel in most cases ; 
but in order that it might give correct counsel, the 
experience of cooperative unions generally shows that 
it would be necessary that there should be a superin- 
tending representative committee to revise the counsel 
of the appointed managing committee in cases where such 
revision should appear to be needful. The counsel given 
would result in acts by common consent of the nations, 
which would have a legislative, judicial, and executive 
character ; but the directorate would not itself legislate or 
execute, though it might adjudicate or arbitrate in 
cases which were proper for adjudication and which 
might be submitted to it for adjudication or arbitration. 
The counsel given by the directorate, the adjudications 
made by it, and the arbitral awards announced by it, 
when acquiesced in generally by the nations, would 
tend to establish accepted rules of international action, 
which would become a part of international law. Vol- 
untary acceptance and carrying out of the counsel, 
judgment or award of the directorate by the nation or 
nations affected would take place in lieu of an execu- 
tion in the ordinary sense. If nations saw fit, they 
could without interfering with the directorate, hold 
general conferences for promulgating rules of future 
action and relationship, which, when duly accepted, 
would become rules of international law. 

An international directorate, in order to exercise real 
political force, would need to have the power to counsel 
and persuade the nations and to induce them volun- 
tarily to conform to the counsel given ; and in addition it 
would need to have all incidental powers necessary to 
make the principal grant of power effective. The na- 
tions would thus delegate to the international directo- 
rate the power to investigate facts, to inquire of persons 
and receive correct information, to send its investigating 



Cooperative Union 291 

agents into any part of the world, to have its diplo- 
matic agents in each nation, to formulate and promul- 
gate counsel upon the facts ascertained, and to publish 
reasoned statements in support of its action in order 
to bring to its aid the moral pressure of public opinion. 
Jurisdiction over all matters of common interest to 
all nations or beyond the competency of any one or 
several of them, might be conferred on an international 
directorate; but such a plenary jurisdiction is not es- 
sential, and the nations might reserve to themselves any 
of the powers within this category which they saw fit 
not to delegate. The matter which is of the greatest 
common interest to all nations is international com- 
merce. Just regulation in this respect is absolutely 
essential to international cooperation. In exercising 
jurisdiction over questions arising out of international 
commerce, it would be necessary for the directorate to 
counsel and persuade the nations so as to bring about 
a just and equitable use of the highways of international 
trade, — the high seas, the international canals, rivers 
and railroads ; so as to bring about a just and equitable 
international intercourse and migration; and so as to 
induce justice and equity in the employment of the 
instruments of international trade and finance. 

The most difficult and delicate matter regarding 
which an international directorate would have to exer- 
cise its conciliative jurisdiction would be the superin- 
tending of territorial adjustments between nations. 
This is a subject which is of the greatest interest to all 
nations, and up to the present time no way has been 
found to regulate it except through war or the threat of 
war. In order to exercise successfully a conciliative 
jurisdiction over this subject, it would be necessary for 
the directorate to apply an equitable principle accepted 
by the nations. Otherwise its counsel would be mere 



292 The American Philosophy of Government 

opportunistic intermeddling, and would be likely to 
produce rather than to prevent war. The principle 
applicable in the determination of all territorial adjust- 
ments between nations would seem to be that the units 
of a union of nations, being theoretically equal in the 
union, ought to be as nearly as possible equal in size 
and strength. It is of course not impossible that large 
and strong units of territory and population should 
live in cooperative union with small and weak ones; 
but such a situation is dangerous to international peace 
and order, and the more nearly the units can be equili- 
brated by being made equal in size and strength, the 
more harmonious and perfect will their union be. The 
principle that units of a union ought to be actually as 
well as theoretically equal is, however, not peculiar to 
cooperative unions. It is equally applicable to federal 
states and even to confederations, as the experience of 
the United States shows. The Articles of Confederation 
nearly failed of adoption and the Confederation was 
threatened with dissolution, because of the inequality 
between the states arising from the fact that some of 
them claimed vast portions of the Northwest Territory. 
The other states realized that, if these states were 
allowed to expand into the Northwest Territory, the 
inequality in size and strength between these enormous 
states and themselves would in practice make the theo- 
retical equality of all the states nugatory, and that the 
smaller states would lose their independence and become 
in fact dependencies of the great states. The smaller 
states insisted that it was essential to the proposed 
union that the claims of the states to the Northwest 
Territory should be ceded to the Union, and that the 
Union should lay out the ceded territory into new 
states of the average size of the original states, which 
should as soon as possible be admitted into the Union. 



Cooperative Union 293 

Thus all the units of the Union, present and future, 
would be approximately equal in fact. 

The union of all nations, — which, though very im- 
perfect, really exists at the present time, — is in a posi- 
tion similar to that of the United States during the 
period from 1779 to 1783, when the problem of equili- 
brating the units of the Union was being considered. 
The existing union of nations is composed of great and 
small nations. Some of the nations claim as dependen- 
cies extensive areas of the earth's surface outside their 
domestic realms. The smaller nations, and those of 
the larger nations which are without dependencies, are 
beginning to realize that equilibration of the units is in 
the long run essential to the full effectiveness and power 
of a cooperative union of the nations; and, while it is 
recognized that the circumstances do not permit of a 
drastic and instantaneous equilibration, it is felt that 
in the course of time and as circumstances permit, 
measures must be taken by mutual and friendly agree- 
ment for transferring to the union of nations those 
claims of jurisdiction over external regions now asserted 
by individual nations, in order that the union may lay 
out these external regions into new nations of the 
average size and strength of the existing nations with 
the understanding on the part of all concerned that 
these new nations shall be admitted into the union of 
nations when duly qualified. Moreover, it is being 
realized that, inasmuch as nations, like human beings, 
are born, grow and decay, there must be provision made 
for new equilibrations of the units by the union of 
nations whenever new nations are formed through ami- 
cable division of great nations or through junction of 
small nations or parts of nations. The United States in 
its constitution wisely made provision for such a con- 
tinuous equilibration by conferring upon its Congress 



294 The American Philosophy of Government 

not only the power to dispose of and make all needful 
rules and regulations respecting the territory or other 
property belonging to the United States, but also the 
power to regulate, by giving or denying its approval, 
the formation of all proposed new states by voluntary 
division of states or by the voluntary junction of states 
or parts of states, and to admit into the Union these new 
states, whether formed out of dependencies of the Union 
or out of the states of the Union, whenever it should 
consider them qualified for admission. 

In order to effect such an equilibration of the units 
of the union of nations, it would be necessary to delegate 
to the international directorate jurisdiction to counsel 
the nations in this respect and gradually to induce a 
voluntary equilibration by its conciliative action. 

A cooperative union, having at its head a directorate 
exercising by conciliative means a moral influence over 
the complicated common affairs of the nations, would 
not be a weak union. The power to counsel and per- 
suade and to induce adoption of its counsel by publi- 
cation designed to influence public sentiment in its 
favor, delegated by all nations to a directing committee, 
would be a tremendous and dangerous power. It would 
have to be most carefully safeguarded by constitutional 
limitations and prohibitions. The nations would have 
to preserve to the fullest extent their power of self- 
determination, and would need to scrutinize and criti- 
cize the action of the international directorate with 
perfect freedom before adopting its counsel. The sole 
ground for adopting its counsel or yielding to its per- 
suasion would be the conviction of the conscience of 
each nation of the justness of the counsel given. Every 
counsel of the international directorate adopted by the 
nations through conscientious conviction of its justness 
would strengthen the moral influence of the directorate 



Cooperative Union 295 

and heighten the presumption in favor of the justness 
of its future action. It is to be expected that, as in the 
case of the Supreme Court of the United States, popular 
sentiment in favor of the international directorate would 
steadily increase as the nations voluntarily adopted its 
counsel. As popular confidence increased, its counsel 
and persuasion would have a moral force so great that 
no nation could refuse to follow the counsel given 
except by convincing the directorate itself and the 
public generally that the counsel was erroneous and 
unjust. 

Cooperative union is applicable to any minor group 
of nations as well as to the great group composed of all 
nations. Several contiguous small nations which are too 
heterogeneous to unite as a federal state may therefore 
sometimes find it possible to unite themselves in a cooper- 
ative union. By means of such minor cooperative unions, 
it may perhaps be possible to solve a perplexing problem 
which for centuries has disturbed the society of nations — 
that is, the problem of bringing about a real cooperation 
between the nations which are large and powerful and 
their neighbor-nations which are small and weak. This 
is of course a problem of equilibration. Europe par- 
ticularly has been disturbed by this lack of equilibra- 
tion. The European concert has always been ineffective 
as a union because of the close juxtaposition of large 
and powerful nations with others which are in compari- 
son small and weak. The large and powerful nations 
will of course never consent to division, so that the only 
possible way of equilibrating the units of the Concert 
is through junction of the smaller nations so as to form 
new units comparable in size and strength with the 
larger. The small nations are too diverse in language, 
tradition and racial traits to unite themselves in groups 
as federal states, though all have a general character- 



296 The American Philosophy of Government 

istic of Europeanization. The diversity which exists 
may perhaps be found to be no obstacle to the coopera- 
tive union of groups of these smaller nations; each 
group having a directorate instituted by itself. Such 
unions would not operate to diminish the independence 
of the nations which were members of them, any more 
than a cooperative union of all nations under a direc- 
torate would diminish the independence of all nations. 
On the contrary, the smaller nations would, as members 
of a minor cooperative union, in all probability have a 
more real independence than they now have. The 
groups of small nations lying between the large nations 
— the groups of so-called buffer-nations — have a com- 
mon interest to unite cooperatively for the preservation 
of their independence against their powerful neighbors, 
and for the purpose of obtaining a real voice in the 
deliberations of the Concert, through their directorates. 
By the formation of the groups of buffer-nations into 
cooperative unions so that each of these unions would 
approximate in size and strength the average of the 
great nations, the European Concert might perhaps be 
equilibrated and might itself become an effective co- 
operative union. The same problem of small and large 
nations exists in all parts of the world. If the plan sug- 
gested should succeed in the European Concert, it would 
doubtless be applied universally. 

Viewing the nations as together constituting an im- 
perfect union at the present time, — as is doubtless the 
fact, — all war is now in a sense civil war. If the nations 
were to recognize themselves as united in a cooperative 
union, all war would unquestionably be civil war, since 
war could occur only between members of the union. 
A cooperative union such as is above outlined, would 
doubtless tend to diminish civil war, but it would not 
wholly prevent it. Therefore, in order that a plan of 



Cooperative Union 297 

cooperative union may be practicable, it must be sup- 
plemented by adequate provision for dealing with civil 
war; so that the union, which is theoretically indissolu- 
ble, may not, as the result of civil war, be in fact dis- 
solved. But it clearly will not do to confer the power 
to deal with civil war upon the international direc- 
torate: for the possession of such power would neces- 
sitate its wielding armies and navies and would convert 
its counsel and persuasion into command and threat, 
thus depriving it of moral influence. The power to deal 
with civil war would have to be delegated to an inter- 
national agency other than the directorate. This 
international agency might and doubtless ought to be 
called into existence and operation by the international 
directorate, in case of emergency, to preserve the co- 
operative union. It would be wholly consistent with 
the functions of the international directorate if it were 
to be authorized, upon the outbreak or threat of hos- 
tilities between nations, to summon a war-conference 
of all nations, or of all nations specially interested, or 
of all the non-belligerent nations, to meet at a time and 
place appointed by it, and to continue during the emer- 
gency, having power to concert measures for the preser- 
vation of the union by settling or suppressing the civil 
war. The proceedings of such a war-conference should, 
it would seem, be judicial in character ; the object being 
to settle the dispute, and on failure of such settlement 
to adjudge between the belligerents so as to determine 
which of them ought on the whole to be regarded as 
the violator of the cooperative principle. The expec- 
tation would be that the non-belligerent nations would, 
upon such adjudication, side with the belligerent which 
was adjudged to have maintained the cooperative prin- 
ciple in the dispute, and would cooperate with it in 
enforcing the submission of its adversary to the coop- 



298 The American Philosophy of Government 

erative regime. If after the adjudication, there should 
be a nearly equal division of the sympathy of the non- 
belligerents, and the nations should form themselves 
into two nearly equal groups of belligerents, the civil 
war would be long, bloody and devastating. Therefore, 
every provision should be made for enabling the non- 
belligerents, in a body, to side fairly, openly, justly and 
unanimously, after due investigation, consideration and 
judgment, with that one of the belligerents which was 
on the side of the union in the dispute; thus making 
hopeless the military position of the one adjudged 
rebellious and stifling the civil war in its inception. 

After the present great war is ended, a time is certain 
to arrive for considering the problem of international 
reorganization and reconstruction. The question will 
be, whether to maintain and perfect the existing co- 
operative union of the nations, or to change it into a 
universal federal state or into a universal confederation 
or league of nations. The first of these courses seems 
most expedient. This would necessitate a gradual 
development of the existing cooperative union by a long 
series of international conferences, each endeavoring to 
remove obstacles to international cooperation and to 
provide more and more effective organs and processes 
for directing the nations towards the observance of the 
cooperative principle. Through such a continuous 
development, cooperative union of the nations might 
be found adequate to produce the nearest approxima- 
tion to international justice, order and peace of which 
the human race is capable. 



NEW NATIONAL PROCESSES AND 
ORGANS 



299 



NEW NATIONAL PROCESSES AND 
ORGANS 

Reprinted from the Proceedings of the Academy of Political Science in 
the City of New York. Columbia University, June 5, 1919. 

THE situation which arises from the proposal that 
the United States shall adopt the instrument 
framed by the Paris Peace Conference and 
called by it "the Covenant of the League of Nations," 
is unprecedented in the history of the nation. It is, 
indeed, a situation which is likely to arise only once in 
the life of an independent state. The question is 
whether the United States shall enter into a union 
with other states, under an instrument which, though 
in form a treaty, is in fact a written constitution, ceding 
to the union a portion of its independence in considera- 
tion of a similar cession by each of the other states; 
the union having as its professed object "to promote 
international cooperation and to achieve international 
peace and security." If the United States decides to 
enter the League, it will, by the cession of the necessary 
part of the nation's independence, change its status 
from that of an independent state holding relations 
with other states solely under the law of nations, to 
that of a member state of a union, subordinate to the 
union, and whose relations to the other states and to 
the union are governed by the constitution of the union. 
The question arises : By what processes and through 
what organs shall the United States act in making its 
decision upon the proposal to enter this union and in 

301 



302 The American Philosophy of Government 

thus determining whether to change its status? It is 
held by many — indeed, it seems to be generally taken 
for granted — that the proper process is that of treaty, 
pure and simple ; and that, therefore, this great decision 
may be made, in behalf of the people of the United 
States, by the President and Senate, the latter acting 
by two-thirds vote. Others hold that, inasmuch as 
the adoption of the Covenant will change the character 
of our government, the treaty-making power is inade- 
quate, and that the change can be made only by amend- 
ing the Constitution of the United States in the manner 
provided by the Constitution. Still others insist that 
as the change of government proposed does not involve 
a change in any specific part of the Constitution but 
will amount to superseding the whole Constitution in 
certain respects by placing over it a super-constitution, 
the process for amending the Constitution is not ap- 
plicable ; and that inasmuch as all powers not expressly 
granted are, by the tenth amendment, reserved to the 
states respectively and to the people, the proper process 
is that of a constitutional convention of the states and 
people of the United States. 

That the treaty-making process, pure and simple, is 
not a proper one in the present case would seem to be 
clear. The Constitution itself distinguishes between 
treaties of union and treaties of the ordinary kind by 
giving to Congress the power to admit new states into 
the Union. Evidently the admission of a state into 
an existing union is possible only by treaty between 
the union and the state, whatever may be the form of 
the action of the parties. This power to admit new 
states undoubtedly includes the power to incorporate 
annexed regions into the union. The reason why this 
power to change the character of the government by 
taking new elements of territory and population into 



New National Processes 303 

its domestic body was vested in Congress, was explained 
by Justice (now Chief Justice) White in the Insular 
Cases. In the case of Downes v. Bidwell (182 U. S. 
287, 312, 313, 319), he said: 

In view of the rule of construction . . . that all powers 
conferred by the Constitution must be interpreted with 
reference to the nature of the government and be construed 
in harmony with related provisions of the Constitution, it 
seems to me impossible to conceive that the treaty-making 
power by a mere cession can incorporate an alien people 
into the United States without the express or implied ap- 
proval of Congress. ... If the treaty-making power can 
absolutely, without the consent of Congress, incorporate 
territory ... it must follow that the treaty-making 
power is endowed by the Constitution with the most un- 
limited right, susceptible of destroying every other pro- 
vision of the Constitution; that is, it may wreck our 
institutions. If the proposition be true, then millions of 
inhabitants of alien territory, if acquired by treaty, can, 
without the desire or consent of the people of the United 
States, speaking through Congress, be immediately and 
irrevocably incorporated into the United States, and the 
whole structure of our government overthrown. . . . 

When the various treaties by which foreign territory 
has been acquired are considered in the light of the circum- 
stances which surrounded them, it becomes to my mind 
clearly established that the treaty-making power was 
always deemed to be devoid of authority to incorporate 
territory into the United States without the assent, express 
or implied, of Congress, and that no question to the con- 
trary has ever been even mooted. 

In the same case, Mr. Justice Gray said (page 346) : 

" So long as Congress has not incorporated the territory 
into the United States, neither military occupation nor 
cession by treaty make the conquered territory domestic 
territory in the sense of the revenue laws. 



304 The American Philosophy of Government 

The treaty-making power was thus described by 
William Rawle, in his work, A View of the Constitu- 
tion of the United States (ed. 1829, page 65) : 

" (A treaty) is a compact entered into with a foreign power, 
and it extends to all those matters which are generally the 
subjects of compact between independent nations. Such 
subjects are peace, alliance, commerce, neutrality, and 
others of a similar nature." 

This conception of the treaty power as a power inci- 
dent to sovereignty, to be exercised within the scope 
and in the manner established by the law of nations 
and by the practice of the leading independent states, 
runs through the literature of the public law which was 
in existence at the time the Constitution was adopted. 
By the law and practice of nations, treaties in general 
between independent states were made by the king or 
chief executive in council. Treaties of union, however, 
were not regarded as treaties but as constitutions of 
government and were made by parliaments in which all 
the estates of the realms of the uniting states were 
represented. This course was pursued in the case of 
the treaty of union between England and Scotland in 
1707, generally called the "Act of Union," by which 
the two states became one under the name of Great 
Britain. The parliaments of each of the states author- 
ized by identical statute the appointment of commis- 
sioners "to treat and consult" concerning a union and 
to make a "report" to the respective parliaments, and 
the parliaments by identical statute accepted and 
adopted their joint report called "Articles of Union." 
In the articles, the whole transaction is called a "treaty 
of union." 

This view of the treaty-making power, as a power to 
make all such agreements with independent states as 



New National Processes 305 

are usually made between independent states, but not 
to make any voluntary agreement with other states 
for a cession of independence, whether mutual or other- 
wise, or to change in any way the character of the 
government, is plainly that held by the Supreme Court 
of the United States. That Court, speaking by Justice 
Field, in the case of Geofroy v. Riggs (133 U. S. 258, 
266, 267), said: 

That the treaty power of the United States extends to 
all proper subjects of negotiation between our government 
and the government of other nations is clear. . . . The 
treaty power, as expressed in the Constitution, is in terms 
unlimited except by those restraints which are found in 
that instrument against the action of the government or 
its departments, and those arising from the nature of the 
government itself and that of the States. It would not be 
contended that it extends so far as to authorize what the 
Constitution forbids, or a change in the character of the 
government, or in that of one of the states, or a cession of 
any portion of the territory of the latter, without its con- 
sent. . . . But with these exceptions, it is not perceived 
that there is any limit to the questions which can be ad- 
justed touching any matter which is properly the subject 
of negotiation with a foreign country. 

It seems clear, therefore, that the Covenant of the 
League of Nations, which is a super-constitution of a 
super-unity of which the United States is to be a mem- 
ber, cannot be adopted by the treaty-making process 
alone, since the treaty-making power does not extend 
so far as "to authorize a change in the character of 
the government. ' ' Any act which changes the character 
of the government is evidently an act done in the exer- 
cise of the constitution-making power, whether it has 
the form of a treaty, a law or an executive order. 



306 The American Philosophy of Government 

The real question is: By what process shall the 
United States enter into a treaty of union having the 
effect to supersede in part the Constitution of the 
United States ? This is the opposite case from a treaty 
of union for admitting into the union a new state or 
for incorporating annexed territory into the domestic 
body. A treaty of that sort is a treaty of union for 
expanding the national strength and influence ; a treaty 
whereby the United States is itself admitted to a union, 
is a treaty for contracting the national powers and has 
a tendency to weaken the national strength and 
influence. 

Congress is declared to have power as respects treaties 
for the purpose of expansion, because, as Chief Justice 
White has said, it represents the interests of the people 
of the United States, all of whom are vitally concerned 
in having the domestic body of the nation kept homo- 
geneous and Americanized. It seems necessarily to 
follow, a fortiori, that Congress, as guardian of these 
vital interests, must have power as respects treaties 
for the purpose of contracting the national powers and 
placing the population in an intimate permanent union 
and relationship with peoples having standards 
and ideals different from and possibly destructive of 
those of the American people. 

It seems far more harmonious with the general plan 
of the Constitution to hold that the Constitution by 
necessary implication intrusts to Congress this pre- 
servative function, as the guardian of all the people, 
of determining whether the United States shall par- 
tially extinguish itself in a union than to hold that the 
constitutional process for determining such a question 
is that of constitutional amendment or of constitutional 
revision through a general constitutional convention. 
By the practice of nations, the legislature of each 



New National Processes 307 

independent state is regarded as the guardian of all 
the people in cases where a change in the external 
relations of the state is proposed, which, if carried into 
effect, will make a difference in its domestic constitu- 
tion or diminish its independence, or which is calculated 
to affect adversely the standards and the ideals to 
which its people have attained. 

Congress undoubtedly may and should utilize the 
treaty-making process as a part of the process by which 
it acts as the guardian of the nation's interests. This 
might be accomplished by Congress providing in the 
act or resolution determining its procedure that in case 
the adoption of the Covenant should be approved by 
Congress, the Covenant should then go to the Senate, 
which should act upon the Covenant as a treaty, de- 
termining the question of its ratification by two-thirds 
vote. 

It would seem clear that Congress, in thus exercising 
this extraordinary power of acting as the guardian of 
the interests of all the people in determining whether 
it is advisable for the United States to enter into a 
union with foreign states, is not obliged to sit, or to 
proceed, in the manner which the Constitution estab- 
lishes for it when it is exercising its strictly legislative 
powers. If this interpretation is correct, it would 
follow that Congress, in the act or resolution determin- 
ing its procedure in this extraordinary case, might pro- 
vide that the two Houses should sit in joint session 
and deliberate by states, the senators and congressmen 
from each state constituting the state delegation and 
each state delegation having one vote. It might also 
be provided that the question whether the Covenant 
should be approved by Congress should be determined 
in the affirmative only by the affirmative vote of three- 
fourths of the states, cast by the state delegations in 



308 The American Philosophy of Government 

the manner mentioned. The principle established by 
the Constitution that the assent of three-fourths of 
the states is necessary for amending the Constitution, 
would thus be preserved. If Congress should thus de- 
cide that it was advisable for the United States to 
enter into the Covenant, the Senate would then pro- 
ceed to deliberate upon the ratification of the Covenant 
as a treaty, and if it should ratify the treaty by a two- 
thirds vote, there would be every probability that the 
union proposed by the Covenant is worthy the ad- 
herence of the United States. 

It is not derogatory to the Senate that a special 
procedure of the kind suggested should be adopted, 
according to which the legislative power and the treaty- 
making power would act jointly. The question whether 
independent states shall voluntarily yield a portion of 
their independence in order to enter a union, is of too 
high and solemn a character to be decided by a single 
branch of the government of a state. The legislature 
and the executive must together perform the great 
duty and take the great responsibility. It is for this 
reason that the Covenant will be submitted for adoption 
to the parliaments of the other states which are to be 
the members of the League. 

The question of the right of Congress to participate 
in determining whether the United States shall enter 
the League, is not a question of the right of the House 
of Representatives to act in the making of treaties, 
though the modern tendency is strongly in the direction 
of allowing the popular branch of the legislature to 
participate in the making of all important treaties. It 
is one thing to hold that Congress, as guardian of the 
interests of all the people, has the right and duty, under 
the law of nations and the Constitution, to participate 
with the ordinary treaty-making organs of the United 



New National Processes 309 

States in determining whether the United States shall 
adopt a treaty having the nature of a super-constitu- 
tion, which, if adopted, will change the character of 
our government by converting what have been the 
foreign relations of the United States into external 
domestic relations. It is a wholly different thing to 
hold that the House of Representatives has the right 
under the Constitution to participate in the making 
of all treaties of the ordinary kind or even in those of 
great economic or political importance. 

The reasons why the power to make ordinary treaties 
was conferred on the President and Senate and not on 
Congress, are thus stated by William Rawle in his 
book above cited, A View of the Constitution of the 
United States of America (ed. 1829, page 65). Speaking 
of the alternatives which presented themselves to the 
Constitutional Convention as respects the branch or 
branches of the government which should be the de- 
positary of the ordinary treaty-making power, he said 
that the choice was between vesting this power "in 
Congress generally, in the two Houses exclusive of the 
President, in the President conjointly with them or one 
of them, or in the President alone." 

He thus states the reasons which determined the 
choice in favor of the President and Senate (pages 
65, 66): 

The formation of a treaty often requires secrecy and dis- 
patch, neither of which could be found in the first or second 
mode, and a contrary plan would be inconsistent with the 
usages of most nations. It remained then either to vest it 
in the President singly, or to unite one of the other bodies 
with him. The latter was obviously preferable; and all 
that remained was to select the one whose conformation 
appeared most congenial to the task. The Senate is a 
smaller body, and therefore, whenever celerity was neces- 



310 The American Philosophy of Government 

sary, the most likely to promote it. It was a permanent 
body; its members, elected for a longer time, were most 
likely to be conversant in the great political interests which 
would be agitated, and perhaps it was supposed that, as 
representatives in one point of view rather of the states 
than of the people, a federative quality appertained to them 
not wholly unconnected with the nature of a foreign 
compact. 

The reasons stated by Rawle are those which have 
always been understood to have influenced the Consti- 
tutional Convention in vesting the treaty-making power 
in the President and Senate. These reasons were no 
doubt excellent at the time (though now steadily grow- 
ing less and less cogent) and fully justified the Consti- 
tutional Convention in making the decision which it 
did concerning the depositary of the power to make 
ordinary treaties. But these reasons did not have in 
1787, and have not now, any application to that 
extraordinary treaty-making and constitution-making 
power which is exercised when an independent state 
enters into a treaty of union. In this extraordinary 
case, there is no need for either secrecy or dispatch. 
The need is for publicity and for slow and calm delib- 
eration. There is no reason to suppose that the Senate 
will be more "conversant in the political interests" 
involved than the whole Congress of the United States. 
Such a treaty is not entered into primarily by the states 
of the Union, but by the people of the United States 
primarily and by the states incidentally, and the Con- 
gress of the United States is, by the law of nations and 
the Constitution, the guardian of the vital and funda- 
mental interests and rights of the people of the United 
States when these great interests are affected by a 
constitutional document having the form of a treaty, 
which is proposed to the United States for its adoption. 



New National Processes 311 

The effect of the proposed Covenant will be, as has 
been above shown, to change our relations with all the 
states which shall be members of the League from for- 
eign relations into external domestic relations. If this 
be its true effect, the fact will be that, in case the 
United States shall decide to enter the League, it will 
find itself without proper organs to enable it to maintain 
its rights and to fulfil its duties under the League unless 
it shall previously have instituted such organs. The 
State Department is organized to deal with foreign 
relations; the others to deal with internal relations. It 
is not generally realized that we have always had some 
external domestic relations. We have always had 
external domestic territories which were incorporated 
into the Union; and by the Spanish War we acquired 
insular countries which are still in subordinate and de- 
pendent union with the United States. Our relations 
with some of these subordinately united countries are 
in charge of the War Department; our relations with 
others of them are in charge of the Interior and Navy 
Departments. The use of these departments as organs 
of the government for handling these kinds of external 
domestic relations serves for the present in view of the 
powerlessness of these subordinately united regions ; but 
such use of the existing departments will not be possible 
when the vast volume of external domestic relations 
which will arise from the moment when the League 
comes into operation, and which will daily grow in 
extent and insistency, is poured upon the United States. 
In order to meet this new situation successfully, it will 
be necessary to be prepared in advance with suitable 
organs of government, under penalty of the vast loss 
which is certain to be caused to any nation in every case 
in which it permits itself to be unprepared to meet a 
great emergency. 



312 The American Philosophy of Government 

A question which the United States must face and 
at once settle, if it decides to enter the League, there- 
fore, is : What kind of an organ is necessary to handle 
successfully the new external domestic relations of the 
United States with the other states of the League ? The 
answer would seem to be that there must be a new 
department of the government to deal with these rela- 
tions. On account of the mixed character of these 
relations, it seems that the new organ or department 
should be composed of the heads of those existing de- 
partments which deal with our foreign relations and 
with such of our domestic relations as have an inter- 
national aspect. The action taken by Congress during 
the war in establishing the Council of National Defence, 
would seem to furnish a precedent in instituting the 
new organ. When the United States entered into 
association with the powers of the European Entente, 
to prosecute the war against the Central Powers, its 
relations with the Entente Powers became, for the 
period of the war, assimilated to external domestic rela- 
tions rather than to foreign relations. In order to 
prosecute the war successfully, there had to be both 
national concentration and international cooperation. 
To meet the situation arising from the existence of these 
new relations, there was established by act of Congress 
(Army Appropriation Act, approved August 29, 19 16, 
Sec. 2, U. S. Statutes at Large, Vol. 39, page 619, 649, 
650) a Council of National Defence which was virtually 
a department of the government, but was of a composite 
character. The function of the new department was 
declared to be "the coordination of industries and re- 
sources for the general welfare." It was provided that 
there should be two parts of the new organ, an upper 
and a lower body. The upper body, or Council of 
National Defence proper, was to consist of the Secre- 



New National Processes 313 

tary of War, the Secretary of the Navy, the Secretary 
of the Interior, the Secretary of Agriculture, the Secre- 
tary of Commerce and the Secretary of Labor. The 
lower body was called the ' 'advisory commission. ' ' The 
act provided that it was to be composed of not more 
than seven persons, nominated by the Council and 
appointed by the President, and that each of these 
persons should "have special knowledge of some indus- 
try, public utility, or the development of some natural 
resource, or be otherwise specially qualified, in the 
opinion of the Council, for the performance of the 
duties" of the department. Provision was also made 
for the appointment of expert sub-commissions and of 
individuals as expert investigators. The duties of the 
Council, as specified in the act, were, as follows: 

To supervise and direct investigations and make recom- 
mendations to the President and the heads of executive 
departments as to the location of railroads with reference 
to the frontier of the United States, so as to render possible 
expeditious concentration of troops and supplies to points 
of defence; the coordination of military, industrial and 
commercial purposes in the location of extensive highways 
and branch lines of railroad; the utilization of waterways; 
the mobilization of military and naval resources for defence ; 
the increase of domestic production of articles and materials 
essential to the support of armies and of the people during 
the interruption of foreign commerce; the development of 
sea-going transportation; data as to amounts, location, 
method and means of production, and availability of mili- 
tary supplies; the giving of information to producers and 
manufacturers as to the class of supplies needed by the 
military and other services of the Government, the re- 
quirements relating thereto, and the creation of relations 
which will render possible in time of need the immediate 
concentration and utilization of the resources of the 
Nation. 



314 The American Philosophy of Government 

The reason why this statute was adopted and the 
new organ or department instituted was that it had 
been found by experience that the external domestic 
relations of the United States with its associates during 
the war could be handled successfully only by a new 
department of the government adapted to bring about 
the requisite national concentration and international 
cooperation. In order to cooperate in a military asso- 
ciation with other states, the United States found it 
necessary to visualize itself and to act, as a unit of a 
union, for producing and placing in the field an army 
and navy provided with adequate food, shelter and 
munitions of war, so long as the war should last. 

Peaceful cooperation with other states will also re- 
quire the United States to visualize itself and to act 
permanently, as a unit of a union for producing and 
placing in the field an army of organizers and workers 
provided with adequate food, shelter, and the appur- 
tenances of civilization adapted to the pursuit of hap- 
piness, for utilizing the materials and forces of nature 
for human benefit and equitably distributing the prod- 
uct among the states, peoples and individuals of the 
world. In order to deal successfully with these new 
and vast external domestic relations which will arise 
under a union which, like the one proposed, is "to pro- 
mote international cooperation and to achieve inter- 
national peace and security," it will be necessary, it 
would seem, to institute by act of Congress, a new 
organ or department of the government, based on the 
principles of the Council of National Defence. The 
new department might perhaps be called "The National 
Council of International Cooperation." It might be 
composed of the Secretary of State, as chairman, and 
the Secretary of the Interior, the Secretary of the 
Treasury, the Secretary of Agriculture, the Secretary 



New National Processes 315 

of Commerce and the Secretary of Labor. The same 
provision for the appointment of the expert advisory 
commission and of sub-commissions and expert ad- 
visers and investigators should undoubtedly be made. 
The function of the new department would be to inves- 
tigate and inform itself concerning all matters falling 
within the jurisdiction of the League and to advise the 
President and Congress concerning any of these matters 
regarding which the United States might be called upon 
to make a decision. 

The underlying principle upon which to base the 
action of the United States, in establishing such a new 
department would be that cooperative life is an art 
which can be acquired only by study and experience. 
It is a fact of general knowledge that only persons and 
nations of high attainments in intelligence and con- 
scientiousness can appreciate the reasons and motives 
of enlightened self-interest which form the basis of the 
cooperative philosophy and actually do what coopera- 
tion requires. The units of a cooperative society must 
all be equally well-informed, intelligent and conscien- 
tious. International cooperation is impossible except 
by intelligent and conscientious nations, each of which 
has its own organ of investigation and judgment deal- 
ing with the affairs of the world in all their phases and 
acting as adviser to its executive and its legislature. 

The institution of such a department as above out- 
lined, contemporaneously with the entry of the United 
States into any super-union, is dictated not merely by 
principle. It is enjoined upon us also by considerations 
of prudence. The proposed Covenant, or any other 
similar super-constitution, if adopted, will establish a 
body in the world which, even though given only ad- 
visory powers, will exercise a great influence. Experi- 
ence proves that such an influence will tend to become 



316 The American Philosophy of Government 

actual political power. One has only to remember the 
influence and power which the Roman Papacy has had 
and still has in the affairs of the world, and that which 
great newspapers, like the London Times of a half- 
century ago, have exercised in international politics, to 
realize that advisory power in a person or personality 
of acknowledged leadership, especially if accompanied 
with the power of investigation and publication, must 
be classed, in its actual effect, as real political power. 
Against even the advisory action of a body recognized 
as having international leadership, each nation must 
be prepared. Each nation must have knowledge of 
world affairs equal to that of the body sitting at Geneva, 
or the advice of Geneva will be in effect the command of 
a superior to an inferior. The United States, in particu- 
lar, must be prepared for the new emergency; for, if it 
is not intellectually prepared to meet with facts and 
arguments the advice emanating from Geneva, its geo- 
graphical location may lead to political situations in 
which the body sitting at Geneva, voicing the senti- 
ment of Europe, or of Europe and Asia, may succeed 
in giving advice to the United States or to America 
which will in fact be a command. Against such con- 
tingencies, provision should, it seems, be made at the 
instant the United States decides to enter into the 
League, if it does so decide. To delay the institution 
of the new department or organ would tend to involve 
the nation in a maze of complications caused by the 
attempt of the existing departments to deal with the 
new relations. It seems clear, therefore, that the ques- 
tion of the adoption of the Covenant and of the insti- 
tution of the new department should be considered and 
decided together so that the moment the League begins 
to operate, at that moment the new department of the 
United States may begin also to operate. The prin- 



New National Processes 317 

ciple that "eternal vigilance is the price of liberty" 
evidently applies to the new situation presented by the 
proposal to enter the League, in all its phases, present 
and future. 



THE MANDATARY SYSTEM UNDER THE 

COVENANT OF THE LEAGUE 

OF NATIONS 



319 



THE MANDATARY SYSTEM UNDER THE 

COVENANT OF THE LEAGUE 

OF NATIONS 

Published in the Proceedings of the Academy of Political Science, 
Columbia University, June 5, 19 19. 

THE proposed Covenant of the League of Nations 
declares in its preamble that the object of the 

signatory powers, in uniting themselves as a 
League, is "to promote international cooperation and 
to achieve international peace and security." This 
universal object can only be accomplished by the League 
exercising such a moral ' influence over the civilized 
states external to it and such an advisory or actual 
control over all the backward peoples of the world, or 
at least over such of them as may, by common consent 
of the members of the League, be placed under its 
tutelage, as will bring about a universal cooperative 
relationship between all states and peoples. 

The Covenant, therefore, properly makes provision 
for these two classes of external relations of the League. 
In Article XVII and Article I arrangements are made 
for settlement of disputes between the League and its 
members and external civilized states and for admitting 
such states into the League. In Article XXII and 
Article I arrangements are made for the administration 
by the League of such regions inhabited by backward 
peoples as may be ceded to it by the members of the 
League having claims to the title and sovereignty of 

21 321 



322 The American Philosophy of Government 

the regions, and for admitting to membership in the 
League any backward people which shall have attained 
the position of "a self-governing colony" of the League 
and be otherwise qualified for membership. 

As respects those regions which are at the present 
time colonies, protectorates or dependencies of any one 
of the civilized states, whether the state is a member 
of the League or not, the Covenant is silent except that 
Article I makes eligible for membership in the League 
a ' 'self-governing dominion or colony" of any civilized 
state which is otherwise qualified. 

It is the provisions of Article XXII relating to the 
administration by the League of regions inhabited by 
backward peoples and ceded to it by the member 
states, that are to be considered under the title "The 
Mandatary System." This name arises from the fact 
that under the system established by this Article, a 
member state participating in the tutelage by the 
League of the backward regions ceded to it is required 
to act as a mandatary on behalf of the League. 

The paragraphs of Article XXII which establish the 
general principles of this new system and determine 
the original territories to which it shall be applied, are 
as follows: 

To those colonies and territories which as a consequence 
of the late war have ceased to be under the sovereignty 
of the states which formerly governed them and which are 
inhabited by peoples not yet able to stand by themselves 
under the strenuous conditions of the modern world, there 
should be applied the principle that the well-being and 
development of such peoples form a sacred trust of civiliza- 
tion and that securities for the performance of this trust 
should be embodied in the Covenant. 

The best method of giving practical effect to this prin- 
ciple is, that the tutelage of such peoples should be entrusted 



The Mandatary System 323 

to advanced nations who by reason of their resources, their 
experience, or their geographical position, can best under- 
take this responsibility, and who are willing to accept it, 
and that this tutelage should be exercised by them as man- 
dataries on behalf of the League. . . . 

In every case of mandate, the mandatary shall render to 
the Council an annual report in reference to the territory 
committed to its charge. 

The degree of authority, control or administration to be 
exercised by the mandatary shall, if not previously agreed 
upon by the members of the League, be explicitly defined 
in each case by the Council. 

A permanent commission shall be constituted to receive 
and examine the annual reports of the mandataries and to 
advise the Council on all matters relating to the observance 
of the mandates. 

It is noticeable that though the title and sovereignty 
of the regions conquered by the allied and associated 
powers in the late war is assumed by the language of 
the provisions quoted to be in the League, there is no 
formal cession or conveyance to the League of the 
claims of the states to these regions. The reason for 
the absence of formal words of cession seems to be 
this: These regions, though in fact each of them was 
conquered by some one or a few of the allied and 
associated powers, are, nevertheless, in contemplation 
of the law of nations, under the terms of the alliance 
and association, the joint conquest of all; and the mili- 
tary occupation of any of these regions, though in fact 
established and maintained by one or a few of these 
powers, inures in law to the benefit of all and confers no 
individual sovereignty upon the state or states which 
actually made the conquest or which maintain the 
military occupation. The sovereignty of the former 
sovereigns of these territories has, as the Article says, 



324 The American Philosophy of Government 

ceased, and the sovereignty of these regions is in the 
allied and associated powers collectively. When, 
therefore, they unite themselves into a League, the 
League is regarded by them as succeeding to their 
collective sovereignty by operation of law and by their 
consent, so that no formal cession or quit-claim is 
necessary, and a mere recognition of the passing of 
their collective title to the League is treated as 
sufficient. 

The exercise by the League of the sovereignty over 
these joint conquests of the allied and associated 
powers, as their successor, by operation of law and their 
consent, is, it will have been noticed, subjected by the 
provisions of Article XXII, above quoted, to ' 'securi- 
ties" or "safeguards" which the Article declares to be 
indispensable and "embodied in the Covenant" — evi- 
dently intending that these "securities" or "safe- 
guards" should be a covenant running with the land, 
analogous to what the United States in its Ordinance 
for the Government of the Northwest Territory of 1787 
called "Articles of Compact," having the sanctity of a 
fundamental constitution of the regions designated and 
all similar regions and applying to these regions for 
all future time, so long as the population may continue 
to require tutelage. 

The first of these safeguards is, that the sovereignty 
of the League over these regions shall be true sover- 
eignty, that is, that the governmental power exercised 
by the League over the backward peoples committed to 
its care shall be exercised as a "sacred trust of civiliza- 
tion," in order to promote "the well-being and develop- 
ment" of the peoples governed. There is thus assured 
to the peoples of these regions, in the Lincolnian phrase, 
government of and for the people, and also, so far as 
may be practicable, by the people, — and, in the 



The Mandatary System 325 

Rooseveltian phrase, government which shall help the 
peoples governed to help themselves. 

The second of these safeguards is, that the League 
shall administer its trust for the tutelage of its depen- 
dent regions through the instrumentality of one of the 
civilized states, in every case where such administra- 
tion is possible. Direct administration by the League 
is not prohibited and evidently cannot be, since the 
states are all at liberty to decline to act for it; but 
administrative tutelage through a state is declared to 
be "the best method." 

The system of mandatary administration is safe- 
guarded in various ways, — first of all, by the legal 
terms descriptive of the legal obligations assumed by 
the League and by the state which acts for it. The 
League is described as the "trustee" of backward 
peoples committed to its charge, and the state which 
acts for it is described as its "mandatary." A trustee, 
under all systems of law, is without power to delegate 
his trust ; hence the League is by necessary implication 
prohibited from delegating to any state its trustee 
sovereignty over backward peoples committed to its 
charge. It must forever retain its responsibility as 
trustee for such peoples. Its dealing with states re- 
garding such peoples is limited to appointing one of 
them as its "mandatary," — that is, as its agent, to do 
in its behalf what the League may deem proper in 
order to enable it to perform its trust, and to serve 
without remuneration, — a mandate being a form of 
agency in which the agent acts without right to re- 
muneration or profit, though without liability to loss. 
There is thus contained in the term "mandatary" an 
implied prohibition against exploitation of backward 
peoples by mandatary states or their citizens. 

Other safeguards for the faithful execution of the 



326 The American Philosophy of Government 

trust assumed by the League in behalf of "civilization" 
— civilization being thus personified as the supreme 
trustee of all backward peoples — and in favor of back- 
ward peoples placed under its jurisdiction, are estab- 
lished in the provision that no state shall be eligible 
as mandatary of the League except one which is 
1 'advanced," and, therefore, presumably honest; which 
has "resources," and is, therefore, presumably able and 
willing to make needful advances of money and credit ; 
which is "experienced" and, therefore, presumably able 
to succeed in its tutorial work; and which has an 
appropriate "geographical position," so that it may 
presumably do the work most conveniently and may 
have an interest in making a success of it. Still other 
safeguards are, that the mandate shall be "explicit" 
respecting the "degree of authority" to be exercised by 
the mandatary ; that the mandatary shall make annual 
reports to the League; and that it shall at all times be 
under the surveillance of the League through a com- 
mission of surveillance appointed by the League. 

There are paragraphs of Article XXII other than 
those above quoted containing safeguards which es- 
pecially interest the backward peoples, since they de- 
termine the regime to be applied to each according to 
its stage of development. These paragraphs are as 
follows : 

The character of the mandate must differ according to 
the stage of the development of the people, the geographical 
situation of the territory and other circumstances. 

Certain communities formerly belonging to the Turkish 
Empire have reached a stage of development where their 
existence as independent nations can be provisionally rec- 
ognized, subject to the rendering of administrative advice 
and assistance by a mandatary until such time as they are 
able to stand alone. The wishes of these communities must 



The Mandatary System 327 

be a principal consideration in the selection of the man- 
datary. 

Other peoples, especially those of Central Africa, are at 
such a stage that the mandatary must be responsible for 
the administration of the territory under conditions which 
will guarantee freedom of conscience or religion, subject only 
to the maintenance of public order and morals, the prohi- 
bition of abuses, such as the slave trade, the arms traffic 
and the liquor traffic, and the prevention of the establish- 
ment of fortifications or military and naval bases and of 
military training of the natives for other than police pur- 
poses and the defense of territory, and will also secure 
equal opportunities for the trade and commerce of other 
members of the League. 

By these provisions the sovereignty of the League over 
these regions is apparently regarded as a paramount 
sovereignty or overlordship ; the ordinary sovereignty 
or lordship being regarded as vested in the people under 
tutelage when it is of the first grade, and in the man- 
datary state when the people is of the second grade. 
In solving the legal problems of the future which may 
turn upon the question of sovereignty over these re- 
gions, it will apparently be necessary to resort to the 
principles of the feudal system. The League, as para- 
mount sovereign and overlord, would appear to have 
under these provisions, the sole duty of protecting from 
external aggression all the backward regions committed 
to its paramount sovereignty; the mandatary state, as 
ordinary sovereign or lord, having only the duty of 
tutelage or education. The safeguards provided for 
peoples of the second grade are substantially those 
established for such peoples by the action of the Berlin 
African Conference of 1885 and the Brussels African 
Conference of 1890. 

The remaining paragraph of Article XXII other than 



328 The American Philosophy of Government 

those above quoted, concerns a class of peoples under 
the trusteeship of the League which by reason of their 
contiguity to the mandatary state and their consequent 
manifest destiny to be incorporated into its domestic 
body, or by reason of their insularity, diminutiveness, 
or other peculiarities, are permitted to be subjected by 
the League and the mandatary state to a special 
regime. The words of this paragraph are as follows : 

There are territories, such as Southwest Africa, and cer- 
tain of the South Pacific Islands which, owing to the 
sparseness of their population, or their small size, or their 
remoteness from the centers of civilization, or their geo- 
graphical contiguity to the territory of the mandatary, and 
other circumstances, can be best administered by the man- 
datary as integral portions of its territory, subject to the 
safeguards above mentioned in the interests of the indige- 
nous population. 

In the cases mentioned in the above paragraph, the 
paramount sovereignty will still, of course, remain in 
the League and the regions specified will not, in con- 
templation of the law of nations, constitute an integral 
part of the territory of the mandatary state. They will 
simply have a form of administration similar to that 
which they would have if they were integral parts of 
its territory. All the constitutional safeguards under 
the constitution of the mandatary state which would 
apply if they were integral parts of its territory, will 
be applicable and also all the constitutional safeguards 
provided in the Covenant which are for the benefit of 
the indigenous population. 

The Covenant, it will have been noticed, contains no 
express provisions concerning the revocation of a man- 
date given by the League to a state. That the League 
has this power, however, there can, it seems, be no 



The Mandatary System 329 

doubt. A mandate, like every form of agency, is 
revocable at the election of the principal. The author- 
ity given to the League by the Covenant to appoint 
and commission states as its mandataries and to 
supervise the states which have accepted its mandate, 
would seem necessarily to imply the power to revoke 
the mandate. That the League will not revoke a 
mandate without just cause and without a judicial 
determination, is to be assumed. 

From the foregoing survey of the safeguards provided 
in the Covenant to insure the harmonious correlation 
of all the conflicting interests which will exist concern- 
ing backward peoples committed to the charge of the 
League and administered by it through a state as tutor, 
it is evident that these safeguards are inadequate in 
one important respect, namely, as respects the prin- 
ciples to be observed in the selection of the mandatary 
state. All that the Covenant says on this subject is 
that those states only shall be eligible to receive a 
mandate of the League which are ''advanced," which 
have "resources," and "experience," and which have 
a "convenient geographical position." These safe- 
guards are all good, but in view of existing international 
conditions and the history of the dealings of civilized 
states with backward regions, they are clearly not 
sufficient. There must also be rules making states in- 
eligible in certain cases, if "the mandatary system" is 
to become, in fact, a part of the great plan "to promote 
international cooperation and to achieve international 
peace and security." As rules of ineligibility needful 
to effectuate this prime object of the League, the fol- 
lowing may be suggested: 

First, that a conqueror state should be ineligible for 
a mandate of the League for the tutelage of conquered 
regions unless the war in which the conquest was made 



33° The American Philosophy of Government 

was waged on the declared issue of misgovernment of 
the indigenous population by the vanquished state. A 
civilized state which in a war with another civilized 
state fought on issues of any other kind shall have 
seized and occupied the colonies or dependencies of its 
opponent inhabited by backward peoples should not 
be permitted to receive benefits from its military 
seizure and occupation of these backward regions by 
turning them over to the League and receiving them 
back as its mandatary. To permit a conqueror state 
to be eligible for a mandate in such a case must neces- 
sarily tend toward the perpetuation of the old rule, 
so prolific of war, that backward regions are pawns in 
the game. At the Berlin African Conference of 1885, 
the United States earnestly urged the establishment 
by the conference of a rule of ineligibility such as is 
here suggested as respects Middle Africa. 

Second, that a state which has an extensive domestic 
territory or an extensive external domain should be 
ineligible for a mandate. To permit a member-state 
of the League which has a domestic territory far 
exceeding in extent the average territory of the mem- 
ber-states, or which already holds and governs as its 
colonies, protectorates, or dependencies so large a part 
of the world as to give it a monopoly in fact of the eco- 
nomic life of the world and a virtual world dominion, 
to be eligible to accept a mandate of the League for 
the tutelage of additional regions would tend to in- 
crease the opportunities of such a state for world-mo- 
nopoly and world-dominion and would also tend to 
enable the state to control the League for its own 
benefit. The "mandatary system" is capable of be- 
ing used so as to have a very considerable effect in 
bringing about an equalization between the member- 
states of the League and should undoubtedly be used, 



The Mandatary System 331 

so far as practicable, to effect this very desirable 
result. 

Third, that a member-state of any kind of a federal 
unity existing within the League should be ineligible 
for a mandate. To permit a state which is a member 
of a federal state, or of a federal empire, or federal 
commonwealth, to be eligible for a mandate of the 
League would either place such a state in opposition 
to the federal state, empire, or commonwealth of which 
it is a member, or if the composite state assented, 
would enable the composite state indirectly to obtain 
the mandate for itself. 

It should also be provided in the Covenant, as an 
additional and general safeguard to the whole ' 'man- 
datary system," that the selection of mandataries of 
the League should be made only in times of peace, 
through a judicial proceeding, in which the qualifica- 
tions of every state will be weighed on its merits; in 
which the tribunal charged with making the selection 
will be prohibited from considering any claim based on 
conquest, military occupation, or other right of war; 
and in which there will be taken into consideration and 
brought into harmony all the various interests involved 
— those of the backward peoples, those of the League, 
those of the states eligible for mandates and willing to 
act, and, above all, the general interests of civilization 
and humanity. The League, in the exercise of its 
"trusteeship" in behalf of " civilization" for backward 
peoples, stands in the world in a position analogous to 
that which the chancellor or the probate judge holds 
in the state when he is sitting to determine the matter 
of appointment of a curator for a person not of sound 
mind, or of a guardian for an infant, in order that, for 
the benefit of the backward person himself, of his rela- 
tives, of the state, and of the civilized world generally, 



332 The American Philosophy of Government 

a tutorial and corrective influence may be exercised, so 
as to restore the unsound mind to a normal state of 
soundness or to develop the immature mind to a sound 
maturity. Such proceedings are in all systems of law 
regarded as of the highest importance to the sound life 
of the community and are surrounded by all conceiv- 
able safeguards. The principles of the private law con- 
cerning curatorship and guardianship form a proper 
source from which to derive the principles and practices 
of the "mandatory system" by analogy, so that it shall 
fit into the general plan of the League and enable the 
League to effectuate its object. 

However novel the "mandatary system" may appear 
to those unfamiliar with international law and colonial 
science, it contains no novelty for publicists. Its adop- 
tion was an inevitable next step in a long course of 
evolution beginning with the action of the Congress of 
Vienna in 1 814. At that Congress it was resolved that 
all the eight members of the Congress, whether possess- 
ing colonies in Africa or not, were entitled to partici- 
pate in the consideration of measures for cooperative 
action in abolishing the African slave trade, because, 
as they held, the subject of the relations of civi- 
lized states with backward peoples was one affecting 
public morals and humanity, which was to be deter- 
mined by all the powers collectively. From this action, 
the necessary conclusion, which was soon made, was, 
that the backward peoples of the world are, by the 
law of nations, under a curatorship or guardianship of 
all civilized states, collectively and individually. This 
latter principle was applied, or at least was purported 
to be applied, at various times during the century pre- 
ceding the Great War, in the dealings of the Concert of 
Europe with Turkey, Greece, Egypt, the Balkan States 
and Morocco ; in the dealings of the Concert of Europe 



The Mandatary System 333 

and the United States with Japan and China; and 
especially in the dealings of the Concert of Europe, the 
United States and the Oriental Powers with Middle 
Africa at the Berlin African Conference in 1885 and 
the Brussels African Conference in 1890. The League 
of Nations, as the trustee in behalf of civilization, in 
favor of backward peoples, is the natural successor of 
these various "concerts" of civilized states which from 
time to time — with little success, it must be admitted — 
have attempted to represent "civilization" and bring 
about a cooperative relationship between the civilized 
and the backward peoples. Condominion of backward 
peoples by two or more states was proved to be im- 
possible in the case of Egypt and the Samoan Islands; 
and, for a quarter of a century preceding the Great War, 
it had been recognized that the best method of tutelage 
of backward peoples was for all the civilized states col- 
lectively to assent to some one civilized state placing 
itself in care of each backward people, and for them all 
collectively, acting by way of "concert" to hold that 
state responsible as their mandatary to perform the 
trusteeship of civilization for the tutelage of the back- 
ward peoples. From acting by way of "concert" to 
acting as now proposed, by way of "league" was but a 
short step, and one which was sooner or later certain 
to be taken. 

The question of the desirability of a state accepting 
a mandate of the League under the Covenant in its 
present form, has been much discussed. This is really 
a question whether the general safeguards of the League 
which are now provided by the Covenant, are adequate 
to prevent perversion; and whether, even if they are 
so on paper, the League is likely to be perverted in 
fact, and the Covenant made an instrument of world 
monopoly and world domination by one state or by a 



334 The American Philosophy of Government 

group of states. Under the Covenant in its present 
form the whole power of the League is concentrated 
in the Council and Assembly — virtually in the Council. 
These organs of the League have power not only to 
advise concerning international cooperation in peaceful 
activities, but also to advise and superintend the coer- 
cion of a member-state by the other states so as to 
compel it to desist from alleged anti-cooperative action 
and make reparation therefor. The peace powers and 
the war powers of the League are thus in the same 
hands. A state which, on account of its geographical 
position or for other reasons is in danger of having 
this war-power of the League turned against it on 
grounds deemed adequate by these organs of the League 
acting at their discretion, might well decline to accept 
a mandate of the League or any other international 
responsibility likely to weaken its defensive power. It 
would seem that the Council and Assembly of the 
League should be confined to advising the member- 
states concerning peaceful cooperative action, and that 
when it appears to be necessary to coerce a state for 
anti-cooperative action, this question should be deter- 
mined by an extraordinary judicial assembly of the 
other states summoned in a predetermined manner, and 
that this same extraordinary assembly should, in case 
it decides adversely to the state charged with anti-co- 
operative action, advise and control the necessary joint 
constabulary and corrective measures taken by the 
states thus allied against the state adjudged to be an 
international wrongdoer. Assuming that the Covenant 
will, at the time it goes into effect, be adequate to insti- 
tute a League which will in other regards accomplish 
the declared object of promoting international co- 
operation and achieving international peace and secu- 
rity, it would seem that the "mandatary system" would 



The Mandatary System 335 

be a fitting feature of the general plan, and that, if 
there could be incorporated in the Covenant the addi- 
tional safeguards of the system above outlined, there 
would be reason to hope it might be successful. 

That there would be much risk and little honor in 
the assumption, by any of the powers which are the 
conquerors in the late war, of the mandate of the League 
over the backward conquered regions to which alone 
the Covenant in its present form relates, seems certain. 
The history of all civilized states in dealing with back- 
ward peoples is deeply stained with ' 'atrocities," and 
comparison cannot now be admitted — especially com- 
parison based on interested testimony gathered during 
the war. An examination of the literature of the world 
before the war, will, it is believed, show that the pub- 
licists of the powers which are now in the position of 
victors, found no fault with the title of the powers 
which are now in the position of vanquished, to the 
backward regions under their jurisdiction; and that in 
estimating the comparative value to civilization of the 
colonizing activities of the various powers, colonial 
experts recognized as highly valuable the work done 
by the now vanquished powers. The case of Turkey is, 
of course, that of a sick man, whose sickness has been 
made worse by the conflicting ministrations of his 
alleged physicians. A state accepting a mandate for 
the care of such a patient would need to be assured that 
the physicians previously in charge of the case would 
voluntarily and entirely withdraw. 

If the "mandatary system" should prove successful 
in the case of the backward peoples committed to the 
care of the League of the Covenant, it would doubtless 
gradually be extended to include the colonies, protec- 
torates and dependencies of civilized states inhabited 
by backward peoples. Each such state which desired 



336 The American Philosophy of Government 

to act honestly as respects the backward peoples de- 
pendent upon it, would have a strong motive to re- 
linquish its dependencies to the League in case it could 
receive them back as mandatary, for the protection of 
these regions against external aggression would then 
fall upon the League. The vast navies now kept up 
by colonizing states as "insurance" against the loss of 
colonies could then be dispensed with, and unwillingness 
of a colonizing state to assume toward its colonies the 
relationship of mandatary of the League would give 
rise to the suspicion that it desired to exploit the back- 
ward peoples under its control and required its navy to 
insure freedom from interference in its work of exploi- 
tation. 

The "mandatary system" is, it is evident, a necessary 
part of the new system in which the civilized states 
recognize themselves as having with each other social 
relations of a legal nature, as well as those purely con- 
tractual and economic relations with which interna- 
tional law proper is concerned. There thus seems to 
be coming into existence, through the establishment of 
this "society of the civilized states," as The Hague 
Conferences called it, by international convention, a 
new division of the general public law, distinct from 
international law proper — a social law of nations, of 
which the "mandatary system" forms a part. 



THE SHANTUNG QUESTION AND 
SPHERES OF INFLUENCE 



337 



T 



THE SHANTUNG QUESTION AND 
SPHERES OF INFLUENCE 

Reprinted from The Nation, September 20, 19 19. 

HE Shantung Question arises out of the following 
provision of the Peace Treaty: 



Germany renounces, in favor of Japan, all her rights, 
title and privileges — particularly those concerning the terri- 
tory of Kiaochow, railways, mines, and submarine cables — 
which she acquired in virtue of the treaty concluded by her 
with China on March 6, 1898, and of all other arrangements 
relative to the Province of Shantung. 

The "rights, title and privileges" in question are 
exclusively those which Germany had, on China's do- 
mestic territory and within the sphere of its sovereignty, 
by "treaty" with China and by "arrangements" with 
the other states having influence in China. 

The treaty of March 6, 1898, between China and 
Germany, as published at Shanghai in 1908 by the 
Chinese (British-controlled) Imperial Customs Office, 
was composed of a preamble, three parts, and ratifica- 
tion clauses and signatures. The first part is headed 
"Lease of Kiaochow," the second, "Railroad and Min- 
ing Concessions," and the third, "Priority-Rights in 
the Province of Shantung." 

In the first sentence of the preamble it was stated 
that the incident at the mission station in the prefecture 
Tsaochoufu in Shantung had been settled at the time 

339 



340 The American Philosophy of Government 

the treaty was made. This incident was the murder of 
two German Roman Catholic missionaries, about four 
months previously, at the town which was the birthplace 
of Confucius, by Chinese political rioters who were 
members of anti-foreigner societies. Germany sent 
ships to Kiaochow Bay and landed marines, holding 
the bay as security for reparation. 

The facts concerning the incident and its settlement 
are given in the correspondence between Sir Claude 
MacDonald, the British Minister to China, and Lord 
Salisbury, published in the Parliamentary Papers. The 
murder of the German priests, as a political anti- 
Christian and anti-foreigner act, and the complicity of 
the Governor of Shantung, were conclusively proved by 
the testimony of a third German priest who was 
attacked with the two others and who escaped. The 
naval action of Germany relieved Great Britain from 
carrying out a threat to send a punitive expedition into 
Shantung, as is shown by the following extract from a 
letter of Sir Claude MacDonald to Lord Salisbury, of 
December I, 1897: 

During the summer there were prevalent in this province 
rumors of the kidnapping of children of foreigners, which 
produced much excitement, and placed the missionaries in 
the interior in great danger. The Governor, in spite of 
much pressure, did nothing to suppress these rumors, and 
even by his attitude gave them tacit encouragement. After 
repeatedly calling the Yamen's attention to his conduct, I 
was at last obliged to desire them to warn him that if any 
serious incident occurred as a result of his anti-foreign 
spirit, he would find himself in jeopardy. This I did in a 
note so long ago as the 27th of July, and the result was, 
according to a report from His Majesty's council at Chefoo, 
that active measures were at length taken to check the 
rumors and the ferment thereupon subsided. 



Shantung 341 

It is not possible at present to ascertain whether this 
agitation has indirectly led to the present outrage, but the 
Governor's attitude has been such as to induce full approval 
of the German demand for his dismissal. 

That the sending of the three small German cruisers 
from Shanghai, where they had been lying, to Kiaochow 
Bay, had the acquiescence, if not the approval, of 
Great Britain, which, then as now, controlled the coasts 
of China from Hong-Kong, is shown by the following 
extract from the same letter: 

If the German occupation of Kiaochow is only used as a 
leverage for obtaining satisfactory reparation, ... for 
the murder of German missionaries, the effect on the secu- 
rity of our own people will be of the best. 

If, on the other hand, the German object is to secure 
Kiaochow as a naval station under cover of their demands 
for reparation, it is by no means clear that their acquisition 
of it will prejudice our interests. 

The terms of the reparation settlement were agreed 
upon about two months before the treaty was signed. 
The Governor was degraded. The money reparation 
included compensation to the relatives of the murdered 
priests, damages for injury to the mission buildings, 
and a contribution to the building of mission chapels 
near the scene of the murder. The reparation-money 
was paid to the Roman Catholic authorities. Germany 
obtained, for itself and all foreign states, an Imperial 
tablet condemnatory of the anti-Christian and anti- 
foreigner proceedings. The next year the Vatican 
granted to Germany the ecclesiastical protectorate over 
Roman Catholics in Shantung; this religious sphere of 
influence being subtracted from that of France, which 
had theretofore extended over all China. 



342 The American Philosophy of Government 

The treaty stated that the Chinese Government re- 
garded the occasion of the amicable closing of the repa- 
ration settlement as an appropriate one for giving a 
concrete evidence of its grateful recognition of friend- 
ship shown to it by Germany. Though repayment of 
the social obligation is thus put forward as the main 
inducement on the part of China in making the treaty, 
it is also stated, as further inducement, that China is 
desirous of "increasing the military preparedness of 
the Empire." The inducement on Germany's part is 
declared to be its desire to have, "like other powers, a 
place on the Chinese coast, under its own jurisdiction" 
— which desire China declares to be "justifiable." The 
inducement on the part of both Germany and China is 
declared to be a "mutual and reciprocal desire further 
to develop the economic and commercial relations be- 
tween the citizens of the two states." 

The treaty granted an extraterritorial port privilege 
within the area including Kiaochow Bay and its envi- 
rons — a land-and-water area about fifteen miles square 
— together with an extraterritorial foreign-settlement 
privilege on the shore of Kiaochow Bay. This area was 
leased to Germany for ninety-nine years "for the repair 
and equipment of ships, for the storage of materials 
and provisions for the same, and for other arrangements 
connected therewith." It was provided that Germany 
should "construct, at a suitable time, on the leased 
territory, fortifications for the protection of the build- 
ings and the defense of the entrance to the harbor." 

The German words concerning the leasehold grant 
were uberlasst pachtweise vorlaufig auf QQ Jahre. A 
literal translation of this phrase is "grants according to 
the analogy of leases [in German law], as a provisional 
or interlocutory measure (vorlaufig) for ninety-nine 
years." It seems probable that by the use of the word 



Shantung 343 

vorlaufig, it was intended by the parties to make the 
lease subject to the terms of the international entente 
concerning spheres of influence in China, not only as 
that entente then existed but also as it should be varied in 
the future by mutual agreement of China and the powers. 

It was also provided that "in order to avoid the pos- 
sibility of conflicts, the Imperial Chinese Government 
will abstain from exercising rights of sovereignty 
in the ceded territory during the term of the lease." 
China had thus the paramount sovereignty over the 
leased territory, and Germany a sovereignty subordi- 
nate to that of China and limited by the terms of the 
lease. China reserved to its citizens and shipping 
within the leased area the same rights as the citizens 
and shipping of other states. 

Inasmuch as Germany's leasehold territory was a 
part of the coast border of China, it was agreed that 
Germany should take no action within that territory 
which would interfere with the unity of the Chinese 
tariff. Germany had thus the option to make a desig- 
nated port of its leased territory a free port — which 
she did — or to collect there the Chinese tariff and pay 
it to China. 

In order that the relationship between Germany and 
China might be continued in case Germany should see 
fit to resign its leasehold privileges, it was provided 
that "should Germany at some future time express the 
wish to restore Kiaochow Bay to China before the 
expiration of the lease, China agrees to refund to Ger- 
many the expenditure she has incurred at Kiaochow, 
and to cede to Germany a more suitable port." 

As incidental to the necessity of obtaining an ade- 
quate water-supply for the leased territory and en- 
abling it to be defended without violating China's 
sovereignty, a zone of land thirty miles wide adjoin- 



344 The American Philosophy of Government 

ing the leased territory was by the treaty placed under 
a kind of partnership sovereignty (vereinbart) . Within 
this zone, China expressly retained full sovereignty, but 
agreed "to abstain from taking any measures, or issuing 
any ordinances therein, without the previous consent 
of the German Government, and especially to place 
no obstacle in the way of any regulation of the water- 
courses which may prove to be necessary." 

The second part of the treaty, headed ' ' Railroad and 
Mining Concessions," was concerned solely with two 
specifically described railroad-and-mining concessions in 
Shantung. These were by the treaty definitely allotted 
to German-Chinese corporations to be formed for the 
purpose, in which the German and Chinese stockholders 
were to have equal rights and proportional representa- 
tion in the directorate. Provisions were made to assure 
the protection of the German personnel of the working 
staff ; and it was required that the work should be done, 
and the concessions operated, in conformity with the 
general regulations of China. The two railroads formed 
a branch to connect Kiaochow Bay with the proposed 
trunk line from Peking to Canton. This trunk line, 
when extended southward to the British railroad system 
in Burma and the French system in Indo-China, was to 
form a part of the southern Peking-to-Paris line which 
was to compete with the Peking-to-Paris line via the 
Manchurian and the Russian Trans-Siberian Railways. 
As respects the section of this trunk line in Shantung, 
the treaty gave no special concession to German or 
German-Chinese corporations. The mining privileges 
within a zone of twelve miles wide on either side of 
the German-Chinese branch line specified in the con- 
cession were also granted. These concessions were to 
be operated by German-Chinese corporations on the 
same terms as the railroad concession. 



Shantung 



345 



The third part of the treaty, headed ' ' Priority Rights 
in the Province of Shantung," related to all future 
internal development concessions in Shantung which 
China might see fit to open to foreign bidding. It has 
been claimed that the effect of Part III was to give 
Germany a right of sovereignty throughout the Prov- 
ince of Shantung. The words of the treaty disprove 
this claim and show that Germany had only an eco- 
nomic privilege in behalf of its engineers and merchants. 
The German text and the translation of this part of 
the treaty are as follows: 



III — Theil. — Prioritdtsrechte 
in der Provinz Shantung. 



Part III — Priority Rights in 
the Province of Shantung. 



Die Kaiserlich Chinesische 
Regierung verpflichtet sich 
in alien Fallen, wo zu irgend- 
welchen Zwecken innerhalb 
der Provinz Shantung fremd- 
landische Hulf e an Personen, 
an Kapital oder Material in 
Anspruch genommen wer- 
den soil, die betreffenden 
Arbeiten oder die Lieferung 
von zunachst deutschen In- 
dustriellen und Handeltrei- 
benden, welche sich mit der- 
gleichen Sachen befassen, 
anzubieten. 



Falls die deutschen Indus- 
triellen und Handeltreiben- 
den nicht geneigt sind, die 



The Chinese Imperial 
Government obligates itself, 
in all cases in which foreign 
aid for any purpose, within 
the Province of Shantung, 
shall be solicited, in the form 
of personal services, the fur- 
nishing of capital, or the sup- 
ply of materials, to present 
the proposals and specifica- 
tions for the public works or 
material-supply under con- 
sideration, in the first in- 
stance to German industrial- 
development-engineers and 
material-supply-merchants 
who are engaged in similar 
undertakings, for a bid by 
them. 

In case the German indus- 
trial-development-engineers 
and material - supply - mer- 



346 The American Philosophy of Government 

Ausfuhrung solcher Arbei- chants are not disposed to 
ten oder die Lieferung von undertake the public works 
Materialien zu tibernehmen, or the supply of materials 
so soil China nach Belieben under consideration, China 
anders verfahren konnen. shall be free to proceed in 

any manner which it may 
deem expedient. 

Under this article, the Chinese Government was obli- 
gated to offer first to competent German contractors 
its specifications for any public improvements which it 
thought proper to make in Shantung, and for which it 
desired foreign aid. It was free to reject any bid so 
obtained, and the German contractors could not, by 
refusing to bid, interfere with China's freedom of action. 
Only in case the German contractors made a bid which 
the Chinese Government considered advantageous, and 
which was in fact better than was likely to be obtained 
elsewhere, could they hope for the contract. The fact 
that the railroad coast-terminal was under German 
jurisdiction and that the railroads from the coast to 
the interior, and the mines adjacent, were owned and 
operated by German-Chinese corporations, would pro- 
tect the German contractors, and might enable them 
in most cases to make a better bid than their competi- 
tors. They and their competitors were assured by the 
"Hay Proposals," which were accepted by Germany 
and the other powers, against discrimination either 
through railroad rates, customs duties, or harbor dues. 

Considering the risk incident to railroad and mining 
enterprises, and public contracts of all kinds, in the 
unsettled condition of China, the economic concessions 
granted by the treaty seem not to have been unreason- 
able. Nor, it would seem, were the political privileges 
at the coast-terminal, or the military and water-supply 
privileges in the adjoining defensive zone, greater than 



Shantung 347 

were reasonably necessary to make the economic 
privileges effective. Certainly, these specific and care- 
fully defined privileges compare favorably with the 
indefinite privileges claimed by the other powers hav- 
ing spheres of influence in China under their various 
treaties and concessions. 

There appears to have been no abuse by Germany of 
the social, political, and economic privileges granted 
to her. That such privileges are capable of gross abuse 
in the hands of a power disposed to use them for 
political purposes goes without saying. 

The proposals which Germany made to China in 
December, 1898, for railroad, terminal-port and pri- 
ority-bid-right concessions in Shantung were understood 
by China and all the treaty powers to have for their 
object the obtaining by Germany of a sphere of influence 
similar to those of other powers. 

Since 1841, when Great Britain, at the close of the 
Opium War, obtained a cession of Hong-Kong in per- 
petuity, Great Britain had claimed and exercised the 
paramount sphere of influence over all China proper. 
France, asserting a ' 'special interest" in South China, 
by reason of the ' 'propinquity" of its conquests and 
colonies at the southern extremity of China — Tonkin, 
Annam, and Cochin-China — claimed a sphere of influ- 
ence in South China up to the Yang-tse Valley. Russia, 
under the secret — though unofficially published — 
"Cassini Convention" of 1896, was claiming a sphere 
of influence throughout Manchuria. 

Japan, ejected from Manchuria in 1895, after having 
exacted it from China in the Chinese- Japanese War, 
had Korea and Formosa, and was in military occupation 
of Wei-hai-wei in North Shantung, holding it as security 
for payment of the indemnity exacted. 

Of the outer states of the Chinese Empire, Burma was 



348 The American Philosophy of Government 

a colony of Great Britain, and Thibet and Western 
Mongolia were under its sole influence. A Russian 
sphere of influence was extended over Eastern Mongolia, 

In order that Germany might acquire a sphere of 
influence, it was necessary that she should obtain from 
China the minimum privileges necessary to create such 
a sphere, and that the treaty of concession should be 
confirmed by "arrangements" with Great Britain, 
France, and Russia. Russia, in its effort to secure the 
approval of Great Britain and France to its still doubt- 
ful claim to a sphere of influence in Manchuria, was in 
the same position as Germany. Moreover, under the 
Cassini Convention, Russia was granted a fifteen-year 
lease of Kiaochow Bay, and only economic terminal 
rights, under China's full sovereignty, at Port Arthur 
and Talienwan. She was therefore willing to relinquish 
her political rights in Kiaochow Bay in case she could 
obtain political rights at the terminals of her Man- 
churian railroad necessary for the protection of the 
railroad enterprise. Thus Germany and Russia, to- 
gether, were able to bring about a discussion of the 
whole question of the propriety of spheres of influence 
in China, their relation to the traditional policy of the 
powers, and the rearrangements necessitated by the 
advent of the two powers. 

There was no doubt concerning the traditional policy 
of the powers with respect to China. By all the treaties, 
it was expressed or implied that the sovereignty of 
China was recognized and was to be respected ; that the 
integrity of its territorial domain was to be preserved; 
and that the nationals of all foreign nations in China 
were to be assured equal commercial opportunity with- 
out any discrimination. To this general policy, which 
the Occidental States profess (though rarely practice) 
towards all transitional states, the popular name of " the 



Shantung 349 

open door" is applied. The Conference of Algeciras 
of 1906 regarding Morocco, gave it a better name — "the 
triple principle" — which, however, has not yet come 
into popular use. 

In 1898, the question of the relation of spheres of 
influence to the open-door policy was raised by collisions 
of interests of the sphere-of -influence powers in various 
parts of the world ; particularly in Africa by the Fashoda 
incident, and in China by the claims of Russia and 
Germany. The subject became a matter of public dis- 
cussion. The liberals in Europe and the United States 
asserted that spheres of influence were mere veiled 
processes of partition, military conquest and annexa- 
tion, and unjustifiable; the conservatives, that they 
were necessary to the economic development of the 
world, and legitimate. 

Between December, 1897, and March, 1898, negotia- 
tions occurred between the Governments of the leading 
nations, and an entente on the subject was reached. 
The entente determined particularly the relations of the 
Occidental States and Japan to China, and that of the 
European States to Middle and Northeastern Africa, 
and established the necessary arrangements. The prin- 
ciples agreed upon in this entente, as to China, were 
announced by Mr. Balfour, then Leader of the House, 
in an address to his constituents in East Manchester on 
January 10, 1898; and as to Africa, in a speech in the 
British House of Commons by Mr. Chamberlain, Sec- 
retary for the Colonies, on February 24 — Sir Edward 
Grey, the Opposition leader, concurring. The treaty 
between China and Germany was signed on March 6, 
1898. 

Mr. Balfour stated the entente concerning China in 
terms of "British policy." This policy, he said, was 
primarily to maintain the open door in China. Great 



350 The American Philosophy of Government 

Britain, he said, did not regard it as contrary to this 
primary principle that other states should have in 
China extraterritorial port-privileges and accompany- 
ing foreign-settlement privileges, provided these ports 
were kept open on equal terms to the commerce of all 
nations, and provided the unity and uniformity of the 
customs system of China was not interfered with. 
Great Britain, he also said, did not regard it as contrary 
to this primary principle that other nations than Great 
Britain should have economic rights on behalf of their 
nationals in the foreign trade of China or in aiding 
China with respect to its internal development, pro- 
vided these rights were not exclusive. This statement, 
which was shown by Mr. Chamberlain's statement of 
February 24 concerning Africa to have been accepted 
by France as a part of the general entente, amounted 
to an approval of the pending proposal of Russia for 
a sphere of influence in Manchuria, and of Germany for 
a sphere of influence in Shantung, since these proposals 
conformed to the rules established by the entente con- 
cerning China. The needful grants and ratifying 
acquiescences were exchanged during the year 1898. 
The final details of the entente as respects China were 
arranged on the initiative of the United States, through 
the "Hay Proposals" of July, 1899, addressed to and 
accepted by the powers having or claiming to have 
spheres of influence in China. It was by the "Hay 
Proposals,'' apparently, that the term "sphere of in- 
fluence" first received international recognition as a 
term describing a legitimate international institution. 

Russia relinquished the leasehold of Kiaochow Bay 
in consideration of obtaining the undisputed sphere 
of influence for railroad and mining development in 
Manchuria, terminal-port and extraterritorial foreign- 
settlement privileges at Talienwan (later Dalny) under 



Shantung 351 

a twenty -five year lease, and fortress rights for the 
same period at the natural Manchurian fortress of Port 
Arthur. In addition to the enormous colonies and con- 
cessions previously mentioned, France and Great 
Britain seized the opportunity further to increase their 
influence and territory. France acquiesced in the va- 
rious arrangements, in consideration of obtaining 
terminal-port and extraterritorial foreign-settlement 
privilege by ninety-nine year lease at Kwang-chau-wan, 
in the southern extremity of China, and a sphere of 
influence for railroad and mining development in the 
southern part of China to the limits of the valley of 
the Yang-tse River; China's hesitant action being 
quickened by military pressure brought to bear by 
France on account of the murder of two French naval 
officers near Kwang-chau-wan. Great Britain obtained 
various compensations — first, the fortress and naval 
base of Wei-hai-wei in North Shantung, commanding 
the German concession at Kiaochow, Port Arthur, the 
Gulf of Pechili, Peking, and all North China. This 
port was then held by Japan as security for payment 
of the indemnity exacted by it from China by the terms 
of the treaty of peace at the close of the Chinese-Japa- 
nese War. A German and a British banking syndicate 
provided China with the necessary loan to pay the 
indemnity, in equal shares. Great Britain further ob- 
tained from China the concession, by ninety-nine year 
lease, of the Kowloon district on the mainland of China 
opposite to the British island fortress and naval and 
commercial harbor of Hong-Kong, thus securing the 
encircling territory of Hong-Kong Bay and being en- 
abled to complete its fortification. She also obtained 
the assurance of all concerned that her sphere of influ- 
ence throughout the Yang-tse Valley — the great and 
enormously productive middle zone of China, including 



352 The American Philosophy of Government 

the international port and city of Shanghai — should 
remain undisputed. The area of North China, north 
of Shantung, including Peking and the international 
port and city of Tientsin, was recognized as an inter- 
national political sphere of influence, though still eco- 
nomically a British sphere. Italy demanded a port 
and a sphere of influence, but was denied the privilege. 
With the consent of China, it was agreed that a British 
banking syndicate should finance and build the south 
half of the Shantung section of the South Peking-to- 
Paris trunk line then projected to pass through Nanking 
and Canton, and that a German banking syndicate 
should build the north half of the section. 

The indemnity to Japan furnished by England and 
Germany having been paid, Japan evacuated Wei-hai- 
wei, and being thus forced out of China was compelled 
to content herself temporarily with Korea and the 
island of Formosa, which she had obtained from China 
by conquest in the Chinese- Japanese War. The govern- 
ment officials of China viewed with relief the action 
of Germany and Russia in obtaining their ports and 
spheres of influence, as strengthening the defenses of 
China by placing two more Occidental powers on the 
coast facing Japan. The common people, however, 
regarded the institution of the spheres of influence 
with suspicion. They had been deeply angered at the 
humiliating despoilment insisted upon by Japan at the 
close of the Chinese- Japanese War, which was permitted 
by the Occidental powers. They henceforth regarded 
Japan as China's permanent enemy and looked upon 
the Occidental powers as treacherous friends, who, 
while professing to regard China as an independent 
state, were, by means of Japan, preparing the way for 
China's disorganization, partition, and ultimate enslave- 
ment. At that time, 1895, the anti-foreign and anti- 



Shantung 353 

Christian movement which in 1900 eventuated in the 
Boxer Revolution and the massacre of the foreigners, 
and especially Christians, had its beginning. This 
movement was not assuaged by the action of the 
powers in 1896, in inducing Japan to give up her con- 
quests in Manchuria; for it soon appeared that, as 
compensation, China was forced to give her the privi- 
lege of having a foreign consular jurisdiction over all 
citizens of Japan throughout China. Japan was thus 
put on a parity with the Occidental States, while 
China was denied a reciprocal privilege in Japan — an 
intense humiliation, which both Government and people 
of China properly resented. 

The international arrangements of 1898 were in pur- 
suance of a definite, well thought-out plan. The rail- 
road and mining enterprises were to be instruments 
of defense as well as means for internal development. 
The one probable aggressor had in mind by all concerned 
was Japan ; and the probable place of invasion was Kiao- 
chow Bay, since this from a military standpoint is best 
adapted for sudden invasion. Great Britain, intrenched 
at its fortresses of Wei-hai-wei and Hong-Kong, and 
still claiming a paramount sphere of influence over 
China for all purposes, supervised Germany's opera- 
tions in Shantung and Russia's operations in Man- 
churia. All the Occidental States concerned were so 
located on the coast of China that, united, they could 
render such prompt aid as to make a Japanese invasion 
impossible. Disunion of these states in 1905 permitted 
Japan to seize Port Arthur and Dalny. The defenses 
of China against Japan are seriously weakened by the 
political sphere of influence and the strategic military 
position which Japan holds in Southern Manchuria. 

Germany's privileges, under the treaty, though essen- 
tially economic, were also social and of a strictly per- 
23 



354 The American Philosophy of Government 

sonal and highly confidential character. The spheres 
of influence were granted by China to Germany and to 
the other states as personal and social privileges, in 
order that both might receive benefit. All social privi- 
leges are based on friendship and a desire to help one's 
friends and one's self, and are by their nature non- 
transferable. The relations of close friendship on which 
such privileges are based do not rise from "propin- 
quity. ' ' A neighbor is not necessarily a friend ; certainly 
not always one whom one would choose as a trusted 
associate in developing one's own property, or to whom 
one would give the privilege of a continuous lodgment 
on one's homestead. On the contrary, a neighbor who 
is untrustworthy is by his neighborhood doubly dis- 
qualified from being admitted into such a confidential 
social relationship, and neighborhood in such case is 
only disadvantageous. The only "special relations" 
which any state can properly put forward as entitling 
it to a sphere of influence within the body-politic of 
another state, are the "special relations" of friendship, 
mutual confidence and mutual aid, which grow up 
between states and persons of good will toward each 
other; and the only "special interests" are those which 
each state and each person has in advancing the welfare 
of all other states and all other persons. These "special 
relations," and "special interests," are the basis of the 
Monroe Doctrine. 

The leasehold rights of Germany were expressly 
declared to be non-transferable. The provision in the 
German text of the treaty is: "Deutschland verp- 
flichtet sich das von China gepachtete Gebiet niemals an 
eine andere Macht welter zu verpachten.' ' A literal trans- 
lation of these words is: "Germany obligates itself 
never to extend farther the leasing process, as respects 
the territory leased from China, to any other state." 



Shantung 355 

This clearly cuts off all privilege of transfer of the terri- 
tory, whether by assignment or sub-lease. 

So long as China was neutral, the concessions to 
Germany doubtless remained in force. The military 
operations of Great Britain and Japan, outside the 
leased territory, and probably also within it, were vio- 
lations of China's neutrality. By China's co-belliger- 
ency with Great Britain and Japan, these violations 
were doubtless condoned. On the declaration of war 
by China, Germany's privileges of all kinds in Shantung 
lapsed, and her state-property in the leased territory 
reverted to China. The action of the Allied and Asso- 
ciated Powers is, therefore, not a transfer of Germany's 
sphere of influence to Japan, but the attempted institu- 
tion by the allied and associated states other than 
China of a new sphere of influence in favor of Japan 
in Shantung similar to that which Germany had before 
the war; and an attempted transfer to Japan of the 
title of China to the former public property of Germany 
in Tsingtao. China properly insists upon the right to 
choose among all the states of the world, without regard 
to their location, those whom it regards as states of 
good will, and to select those whom it may properly 
admit to its honor and confidence and to lodgment 
within its own domains, in order that they may help 
it in helping itself during the trying period of its 
transition from an Oriental to an Occidental eco- 
nomic status. The "twenty-one demands" of Japan, 
backed by military force, are in law nugatory. The 
secret treaties of Great Britain and France with Ja- 
pan, and the action of the President of the United 
States in signing the Shantung provision of the Peace 
Treaty, are equally nugatory. It only remains for 
the Senate of the United States to announce the legal 
situation, and to insist upon an amendment whereby 



356 The American Philosophy of Government 

the Shantung provisions will be stricken out of the 
treaty. 

The theory and practice of the various states differ 
as respects spheres of influence. According to French 
and Japanese philosophy, they are essentially political 
institutions having an economic and also a political 
object. By the Germans and Russians they are re- 
garded as essentially economic-social institutions, with 
such political privileges as are needful to render them 
efficient. In British practice they are one thing or the 
other according to the views of the British government 
concerning the policy to be pursued in any particular 
exigency. The United States, by the "Hay Proposals," 
recognized spheres of influence as legitimate institu- 
tions without attempting to define their import. 
Whatever the theory or practice, however, they 
unquestionably menace the peace of the states where 
they exist and the proper economic development of the 
world. 



THE DISPOSITION OF THE GERMAN 
COLONIES 



357 



THE DISPOSITION OF THE GERMAN 
COLONIES 

Reprinted from The Nation, October 18, 19 19 
I 

IN considering the disposition to be made of Ger- 
many's interests in territory and sovereignty 
outside its domestic frontiers, it is necessary to dis- 
tinguish its colonies — that is, those regions of whose 
territory it had full title and over whose people it had 
full sovereignty — from its concessions — that is, the 
easements in land and personal privileges which had 
been granted to it by a state, to be exercised by it 
upon the territory and under the sovereignty of that 
state. 

The German colonies were Togoland, Cameroon, 
German East Africa, German Southwest Africa, Ger- 
man New Guinea, and certain islands in the Pacific 
Ocean; the interests which it had in China (including 
those under the Shantung treaty), Siam, and other 
states being concessions. 

For purposes of disposition, the colonies were grouped 
and divided thus : 

Togoland, Cameroon, and German East Africa 
formed a group. All these colonies were tropical and 
were densely inhabited by blacks, with a few white set- 
tlers. They were all within the Conventional Basin of 
the Congo as fixed by the Berlin African Act of 1885, 
and also within the much larger Middle African Zone 

359 



360 The American Philosophy of Government 

of International Influence established by the Brussels 
African Act of 1890, and were subject to the provisions 
of these international acts. This group was divided 
into two parts, one consisting of Togoland and Came- 
roon, and the other of German East Africa. France and 
Great Britain owned colonies adjoining Togoland and 
Cameroon; British and Portuguese colonies adjoined 
German East Africa; and the Belgian Congo lay be- 
tween Cameroon and German East Africa. 

German Southwest Africa required to be considered 
separately. It was outside the Congo Basin and the 
International Zone. Its climate was healthful. Its 
population included a considerable settlement of whites, 
and a large number of partly civilized blacks. The 
adjoining regions were British and Portuguese. The 
Union of South Africa had long desired to annex it; 
but according to international law such annexation 
could be effected only by Great Britain first annexing 
German Southwest Africa as a colony and then placing 
it by executive order or Act of Parliament under the 
jurisdiction of South Africa. 

German New Guinea also required to be considered 
separately. It formed a part of the large island of New 
Guinea lying off the north coast of Australia, the rest 
of the island being divided into two parts, one of which 
was a colony of Great Britain and the other a colony of 
Holland. Within the German Colony of New Guinea 
was located the headquarters of the government of 
Germany's Pacific Island possessions. The Common- 
wealth of Australia had long desired to annex the whole 
island of New Guinea as a colony, but could acquire 
territory only through Great Britain. 

Of the other German islands south of the equator, 
the Bismarck and the Solomon Islands might be re- 
garded either separately or as grouped with German 



The German Colonies 361 

New Guinea. German Samoa is a part of a group, 
the remainder of which is owned by the United States. 
The German Samoan Islands were desired by New 
Zealand. Here, as in the case of South Africa and 
Australia, the acquisition could be effected only through 
Great Britain. 

North of the equator lie the Ladrone, Caroline, Pelew, 
and Marshall Islands. These might be regarded either 
separately or as part of a group; but the group, in order 
to be complete, would have to include the Philippines 
and Guam, which they surround. The Marshall Islands 
lie between the Philippines and Hawaii — that is, be- 
tween the United States and China. The manner of 
disposition of all these islands was especially important 
to the United States. 

By commitments of Great Britain to Australia, South 
Africa and New Zealand, it was arranged that they 
should conquer the German colonies desired by them, 
and that Great Britain would do all in its power to 
secure their conquests to them at the peace. By 
unpublished understanding between Great Britain and 
France, they were to conquer Togoland and Cameroon, 
and to support each other at the peace in obtaining 
a disposition to them jointly, subject to partition by 
their agreement, France agreeing to support the British 
claim to German East Africa, subject to arrangement 
with Belgium. 

In February and March, 191 7, Japan, in the same 
secret agreement with Great Britain and France by 
which they acquiesced in its claim to have Germany's 
Shantung concessions, secured their consent to conquer 
the German Islands north of the equator and their 
agreement to support its claim to those islands. Great 
Britain's acquiescence was on the understanding, which 
was accepted by Japan, that Japan would "in the 



362 The American Philosophy of Government 

eventual peace settlement treat in the same spirit Great 
Britain's claims to the German Islands south of the 
Equator." France agreed to Japan's demand in con- 
sideration that Japan would agree — as it did — to "give 
its support to obtain from China the breaking of its 
diplomatic relations with Germany," Japan also agree- 
ing to use its efforts so that China, upon the breach 
of diplomatic relations, would proceed to confiscate all 
German interests within its territory and eject or 
eliminate Germans and German influence. 

Against the military operations of the Allies, resist- 
ance was made by Germans to the utmost extent pos- 
sible. In German New Guinea and the Pacific Islands 
other than German Samoa, resistance by the few resi- 
dent Germans was out of the question, and the conquest 
consisted merely in taking possession. In the African 
colonies, Allies and Germans were assisted by forces of 
blacks trained and led by them. Togoland and Came- 
roon were captured by a British and French force; 
German Southwest Africa by forces of the Union of 
South Africa; German East Africa by a British and 
East Indian force with forces from the Belgian Congo; 
German New Guinea and the islands in the Pacific 
south of the equator (not including German Samoa) by 
an Australian naval expedition ; German Samoa by a New 
Zealand naval expedition ; and the German Pacific Islands 
north of the equator by a Japanese naval expedition. 

Conquests of colonies inhabited by aboriginal tribes, 
it has long been realized, involve the setting of these 
tribes against each other and tend to demoralize them 
and make them dangerous to civilization. The two 
parties of civilized men who are fighting each other, 
few in number on account of climatic conditions, and 
surrounded by the natives, from the necessity of the 
case use threats, persuasion, bribery, and flattery, and 



The German Colonies 363 

play upon the emotions of these ignorant and childlike 
peoples, in order to obtain their military assistance in 
the struggle. With a view to prevent the injury to the 
natives and the devastation of settlements and missions 
caused by arousing their fighting spirit, a determined 
effort was made by the United States, at the time when 
the question of Middle Africa first arose, to place it in a 
situation where it could not be used as a theatre of war 
by civilized states. At the Berlin African Conference 
of 1885, the United States, supported by Germany and 
Great Britain, nearly succeeded in obtaining the inser- 
tion in the final act of a provision whereby the whole 
Conventional Basin of the Congo would have been 
permanently neutralized under international guaranty. 
The sentiment of the Conference was strongly in favor 
of this action. France tenaciously opposed it, the 
French chief delegate, Baron de Courcel, asserting that 
neutralization of the region was impracticable because 
"when a state is at war, it wages war by all means in 
its power." The Conference did, however, adopt a 
provision requiring the signatories of the final act to 
use their good offices to induce the belligerents in 
European wars to neutralize the Middle African colo- 
nies of either or both of them during the war by mutual 
agreement. The United States, as Secretary of State 
Root held in 1907, though not a party to the Berlin 
African Act as a whole, since the Senate did not ratify 
it, is, by reason of being a party to the Brussels African 
Act, a party by adoption to all that part of the Berlin 
Act which has for its object the protection of the native 
inhabitants. But neither the United States, when it 
was neutral, nor any of the parties to the Berlin Act, 
tendered its good offices to the belligerents in the late 
war for the purpose of having its Middle African colo- 
nies neutralized during the war's continuance. 



364 The American Philosophy of Government 

It has been maintained that the capture of the Ger- 
man colonies by the Allies did not have the character 
of a conquest, because Germany acquired its title to 
them illegally. An examination of the facts, however, 
shows that its titles were acquired according to methods 
recognized by international law and practiced by other 
states, and that they had many times been confirmed 
by treaties and international arrangements. 

It has also been stated that the conquests were made 
by the Allies in order to liberate the native populations. 
That natives were abused in German Southwest Africa 
and German East Africa is indisputable. Similar abuses 
occurred in the African colonies of all the other states. 
Up to the time of the war and even during its early 
months the colonial administrative methods of Germany 
were praised by British experts. Its work in industrial 
education of the natives, in medical and scientific re- 
search, and in the maintenance of public health, was 
recognized by them as remarkable. A comparison of 
the penal laws instituted for the natives under German 
administration with those of other states having similar 
colonies shows that these laws were as humane as those 
of the others. 

II 

The fifth of the Fourteen Points announced on Janu- 
ary 8, 191 8, by President Wilson, and accepted by the 
belligerents as the basis of the peace treaty, was as 
follows : 

A free, open-minded, and absolutely impartial adjustment 
of all colonial claims, based upon a strict observance of the 
principle that in determining all such questions of sover- 
eignty the interest of the populations concerned must have 
equal weight with the equitable claims of the government 
whose title is to be determined. 



The German Colonies 365 

The Peace Conference, in organizing itself, instituted, 
as its chief organ, a controlling committee of five com- 
posed of representatives of the five principal Allies — 
Great Britain, France, the United States, Italy, and 
Japan. This committee was called the "Council," or 
the " Supreme Council," of the Conference. The Allied 
and Associated Powers regarded themselves as the 
"Concert of Nations. " The jurisdiction of the "Concert 
of Nations" was undefined, and was in fact extended, 
through the Council, to the doing of whatever the Coun- 
cil saw fit to do. The "Constitution" or "Covenant" 
adopted by the Conference was intended to continue 
and define the "Concert of Nations" and convert it into 
a permanent "League of Nations." President Wilson 
in his address to the Senate on July 10, 191 9, on the occa- 
sion of his presentation of the peace treaty, spoke of 
the Conference as engaged in "the difficult work of 
arranging an all but universal adjustment of the 
world's affairs," and said: 

The Conference . . . was not to be ephemeral. The 
Concert of Nations was to continue, under a definite Cove- 
nant which had been agreed upon and which all were con- 
vinced was workable. They could go forward with 
confidence to make arrangements intended to be permanent. 

The delegates of the United States to the Conference 
of the group of victor states to formulate terms of peace 
with the vanquished group were undoubtedly without 
constitutional authority to bring about or participate 
in a conversion of the Conference of victors into a 
universal government having supreme jurisdiction over 
all states; and if the peace treaty purports to legitimize 
and perpetuate such an act of the Conference, as it 
seems to do, it will be of no validity for this purpose, 
so far as the United States is concerned, even though 



366 The American Philosophy of Government 

the peace treaty were ratified by the Senate. Such an 
act would be an entering into a union with other states 
and would require a constitutional amendment or at 
least previous approval by act of Congress. 

The Covenant of the League of Nations, which was 
adopted by the Conference on April 28, 191 9, and incor- 
porated in the peace treaty, made no distribution of the 
German colonies. By Article XXII it made a provision 
for their administration by any states to which they 
should be distributed, specifying that the distribution 
should be "to advanced nations who by reason of their 
resources, their experience or their geographical position 
can best undertake this responsibility, and who are 
willing to undertake it," and requiring that any such 
distributee state should be held to be a mandatory on 
behalf of the League of Nations in administering the 
region, and should be under the surveillance of the 
League. This necessarily implied that the distribution 
was to be made by the League. 

The Covenant permitted a self-governing dominion 
or colony to be a member of the League, and referred 
to the members of the League as "states." A self- 
governing colony or dominion, upon becoming a member 
of the League, is thereby undoubtedly recognized as an 
independent state. Inasmuch as Canada, Australia, 
South Africa, New Zealand, and India are parties to the 
Covenant, the adoption of it will thus make each of 
them independent and eligible to receive a mandate for 
administering any region, in any part of the world, 
which may be distributed to them by the League. The 
possibilities involved in this arrangement deserve care- 
ful consideration. 

On May 5, 19 19, a "provisional organization of the 
League of Nations" was made at Paris. In the pub- 
lished report it was said that "in adopting the rules for 



The German Colonies 367 

the temporary organization care was taken by the com- 
mittee that nothing of a permanent nature should be 
done previous to the ratification of the peace treaty by 
the United States Senate." 

During the period from April 24 until after May 6, 
1919, Italy was not represented in the Conference or 
in the Council, the Italian delegates having withdrawn 
from the Conference. The "Council" was given the 
name of "The Council of Three." In the published 
account of its proceedings appears the following: 

The disposition to be made of the former German colo- 
nies was decided at the Peace Conference in Paris on May 
6, 191 9, by the Council of Three — M. Clemenceau, Presi- 
dent Wilson and Mr. Lloyd George. . . . The official 
statement in detail is as follows : 

Togoland and Cameroon. — France and Great Britain 
shall make a joint recommendation to the League of Nations 
as to their fate. 

German East Africa. — The mandate shall be held by 
Great Britain. 

German Southwest Africa. — The mandate shall be held 
by the Union of South Africa. 

The German Samoan Islands. — The mandate shall be 
held by New Zealand. 

The other German Pacific possessions south of the Equa- 
tor, excluding the German Samoan Islands and Nauru. — 
The mandate shall be held by Australia. 

Nauru (Pleasant Island). — The mandate shall be given 
to the British Empire. 

The German Pacific Islands north of the Equator. — The 
mandate shall be held by Japan. 

On the next day — May 7, 191 9 — the delegates of the 
Allied and Associated Powers, assembled at Versailles, 



368 The American Philosophy of Government 

presented the peace treaty to the German delegates for 
signature. 

On the day following, Belgium filed a protest with 
the Council against the distribution made by the 
Council of Three, in which it was said: 

In view of Belgium's important military operations in 
Africa, her sacrifices to insure the conquest of German East 
Africa, and the fact that her situation has given her rights 
on that continent, Belgium is unable to admit that German 
East Africa could be disposed of by agreements in which 
she had not participated. 

The peace treaty was signed by Germany on June 
28, 1919. 

The statement above quoted, that the Council of 
Three, before the peace treaty was even presented to 
Germany, "decided" upon the disposition of the Ger- 
man colonies which was "to be made" is noticeable. 
It necessarily implies either that the Council of Three, 
acting as the Council of the Conference, or purporting 
to act as the Council of "the Concert of Nations," or 
as the Provisional Council of the League of Nations, 
was proposing a project of law, or a project of decree, 
to become a law or decree by action of the Conference 
in plenary session, or by action of the Conference as 
purporting to be "the Concert of Nations," or by ac- 
tion of the League of Nations when the League should be 
formed; or that the "Council of Three" was making 
a distribution of conquests to be carried into effect by 
agreement of the parties concerned. 

Inasmuch as the distribution followed exactly the 
plan of conquest and also corresponded exactly with 
Great Britain's commitments to Australia, South Af- 
rica, and New Zealand, and with the understandings 
between Great Britain, France, and Japan, the act of 



The German Colonies 369 

the Council of Three was in fact a division of the spoils 
by the controlling victors, whatever may be the theory 
on which it is now sought to support it. Belgium's 
protest shows that it took this view. 

It has recently been reported that Belgium's claims 
have been satisfied by Great Britain ceding to it a part 
of German East Africa — a proceeding which can be 
explained only on the theory that Great Britain at least 
considers itself to hold the full title and sovereignty of 
the regions allotted to it. 

Ill 

In the peace treaty the following disposition of the 
German colonies is made: 

Article 118. In territory outside her European frontiers 
as fixed by the present Treaty, Germany renounces all 
rights, titles and privileges whatever in or over territory 
which belonged to her or to her allies, and all rights, titles 
and privileges, whatever their origin, which she held as 
against the Allied and Associated Powers. 

Germany undertakes immediately to recognize and to 
conform to the measures which may be taken now or in 
the future by the Principal Allied and Associated Powers, 
in agreement where necessary with third Powers, in order 
to carry the above stipulation into effect. 

In particular Germany declares her acceptance of the 
following Articles relating to certain special subjects. 

Article 119. Germany renounces in favor of the Princi- 
pal Allied and Associated Powers all her rights and titles 
over her oversea possessions. 

Articles 120 to 127, inclusive, also relate to the 

German colonies. Sections 120 to 125, inclusive, have 

for their purpose the elimination of German property 

and interests, public and private, in these colonies. 

24 



370 The American Philosophy of Government 

Article 126 requires Germany to observe the provisions 
of the Brussels African Act relating to the trade in arms 
and spirits in Middle Africa. Article 127 provides 
that "The native inhabitants of the former German 
oversea possessions shall be entitled to the diplomatic 
protection of the Governments exercising authority 
over those territories." 

In Annex VII of Article 244, relating to the transfer 
of the German submarine cables, it is provided as 
follows : 

Germany renounces on her own behalf and on behalf of 
her nationals in favor of the Principal Allied and Associated 
Powers all rights, titles and privileges of whatever nature 
in the submarine cables set out below, or in any portions 
thereof: 

Yap-Shanghai, Yap-Guam, and Yap-Menado (Celebes) : 
from Yap Island to Shanghai, from Yap Island to Guam 
Island, and from Yap Island to Menado. 

If it were not for the action of the Council of Three, 
there could be no doubt that by the adoption of the 
peace treaty the title and sovereignty of all the German 
colonies would, under Article 119, be vested in the 
United States, the British Empire, France, Italy, and 
Japan, as tenants in common in equal shares, since by 
Article 119 Germany is required by all the Allied and 
Associated Powers to renounce all its oversea possessions 
in favor of the "Principal Allied and Associated Pow- 
ers," and the five states named are by the peace treaty 
declared to be these "Principal" Powers. 

Article 118, which requires Germany to "recognize 
and to conform to the measures which may be taken 
now or in the future by the Principal Allied and Asso- 
ciated Powers, in agreement where necessary with third 



The German Colonies 371 

Powers, in order to carry the above stipulation [of 
renunciation] into effect," is exceedingly broad and 
far-reaching. It may be claimed that the expression 
"measures which may be taken now" has the effect of 
importing into the treaty and making final any action 
relating to the German colonies taken by the Peace 
Conference at any time prior to the date of the peace 
treaty, and thus recognizes and imports into the treaty 
the distribution made by the Council of Three. The 
argument would be, no doubt, that the action of the 
"Council of Three" was an act of partition made by 
the Principal Allied and Associated Powers in expecta- 
tion of receiving the title collectively by Article 119 of 
the peace treaty, and that they made this partition in 
advance in order to carry into effect that article. The 
expression, "measures which may be taken now," is so 
unusual and so difficult to understand in this connection 
unless it refers to the act of the Council of Three, that 
prudence demands that all doubt concerning what it 
means or implies should be set at rest before the United 
States is committed to it. 

Were the United States to allow the peace treaty to 
be given such a construction that the distributive act 
of the "Council of Three" would be imported into it, 
it would give its consent to an act which it was not 
within the constitutional power of the representatives 
of the United States to do and which would violate 
its professed plan, accepted by the belligerents, that 
there should be a "free, open-minded and impartial 
adjustment of all colonial claims." 

The distribution was not free or open-minded, being 
made in pursuance of secret commitments and under- 
standings, and without reference to the full Conference. 
If the Covenant permits the British dominions and 
India to be at the same time members of the League of 



372 The American Philosophy of Government 

Nations as independent states, with full voting powers 
and the power to be mandatories of the League, and 
at the same time allows them to be parts of the British 
Empire in subordination to Great Britain, or federal 
states in a British Commonwealth under Great Britain 
as presiding and commanding head, the distribution 
was not impartial ; for by it the British Empire received 
nearly all that there was to be distributed. 

If Japan acquires permanently the islands distributed 
to it, it will be located between the United States and 
the whole Orient; its insular possessions will surround 
the Philippines and Guam ; its influence will be extended 
to a line in the Pacific hundreds of miles nearer the 
United States; it will command Hawaii, the Panama 
Canal, and the whole Pacific Coast. In case a properly 
organized League of Nations should decide that it 
would be fair to dispose of all Germany's colonies and 
give Germany no mandate whatever, and in case back- 
ward regions not its colonies should be allotted to the 
various members of the League, the proper mandatory 
for the Pacific Islands north of the equator would un- 
questionably be the United States. Nothing should be 
allowed to check the development of the Philippines 
along the lines the United States has wisely laid out 
and successfully followed. No self-denying professions 
made in its behalf can properly be allowed to interfere 
with any action having for its object the prevention of 
the present distribution from becoming permanent. It 
is the first duty of a state to protect itself and its wards. 



JUDICATIVE CONCILIATION 



373 



JUDICATIVE CONCILIATION 

Reprinted from Judicial Settlement of International Disputes, 
February, 19 16. 

ON the night of October 21st, 1904, during the 
Russo-Japanese war, Russian warships, pro- 
ceeding down the North Sea in a mist, fired 
upon British trawlers at a fishing ground off the North- 
umberland coast, called "the Dogger Bank"; sinking 
or injuring some of these peaceful fishing vessels and 
killing or wounding a number of British citizens who 
were members of the crews. The excuse was that the 
officers of the Russian ships believed that the trawlers 
were Japanese torpedo boats. After a .short period of 
excitement, during which the incident threatened to 
bring Great Britain and Russia into war with each 
other, a process of pacific settlement was agreed upon 
and a treaty signed embodying this agreement. The 
treaty recited that the British and Russian govern- 
ments had "agreed to intrust to an International Com- 
mission of Inquiry, assembled conformably to Articles 
IX to XIV of the Hague Convention of the 29th (17th) 
July, 1899, for the Pacific Settlement of International 
Disputes, the task of elucidating by means of an impar- 
tial and conscientious investigation the questions of 
fact connected with the incident which occurred during 
the night of the 2ist-22nd (8th~9th) October, 1904, in 
the North Sea." (Declaration between the United 
Kingdom and Russia, relating to the Constitution 
of an International Commission of Inquiry on the 

375 



376 The American Philosophy of Government 

subject of the North Sea Incident. British Parlia- 
mentary Papers, 1905, vol. ciii, p. 361, (Cd. 2328). 

The document was executed November 25th, 1904.) 

The tribunal was to consist of five members — one an 
officer of high rank in the British navy, one an officer 
of high rank in the Russian navy; the governments of 
France and the United States were each to select one 
of their naval officers of high rank, and the fifth member 
was to be chosen by these four. 

If the treaty had contained no other provision than 
these, there could have been no doubt that the proceed- 
ing was one of "inquiry," as defined by the Hague 
Convention for Pacific Settlement, since the treaty 
follows almost exactly the words of Article IX. The 
words there used as defining the function of a "com- 
mission of inquiry" are "to facilitate a solution of these 
differences by elucidating the facts by means of an 
impartial and conscientious investigation." It is true 
that Article IX recommends a commission of inquiry 
only in disputes "involving neither honor nor vital 
interests," but this is clearly a restriction which dis- 
putant nations may waive. 

But the treaty went farther and conferred on the 
commission additional functions. Its words were: 

"The commission shall inquire into and report on 
all the circumstances relative to the North Sea inci- 
dent, and particularly on the question as to where the 
responsibility lies, and the degree of blame attaching 
to the subjects of the two high contracting parties, or 
to the subjects of other countries in the event of their 
responsibility being established by the inquiry." 

The commission was formed, and made a finding con- 
cerning both the facts and the liability. The finding 
was adverse to Russia on the question of responsibility, 
and largely favorable to Russia on the question of 



Judicative Conciliation 377 

blame to be attached to the Russian officers. (North 
Sea Incident. International Commission of Inquiry. 
Despatch from the British Agent forwarding the 
Report of the Commissioners. British Parliamen- 
tary Papers, 1905, vol. ciii, p. 437, (Cd. 2382). Both 
parties accepted the finding, and the matter was peace- 
fully and satisfactorily settled. 

The case is generally cited by writers on international 
law as an example of settlement by a "commission of 
inquiry"; but inasmuch as the commission was given 
jurisdiction to find the facts and also to render an ad- 
visory judgment locating the responsibility and de- 
termining the degree of blame, a question arises con- 
cerning the nature of the proceeding. Is such a process 
of settlement properly to be regarded as one of "in- 
quiry" within the meaning of the Hague Convention 
for Pacific Settlement, or should it be classified under 
some other heading ? 

The Convention states (in Article XIV of the original 
Convention of 1899, and in substantially the same 
language in Article XXXV of the revised Convention 
of 1907), that "the report of an international commis- 
sion of inquiry is limited to a statement of facts, and 
has in no way the character of an arbitral award," 
and that "it leaves the conflicting powers entire freedom 
as to the effect to be given to this statement." While 
the function of an "international commission of inquiry" 
is thus apparently limited to making a finding of facts, 
nevertheless Article X of the Convention states that 
the agreement of the parties "defines the facts to be 
examined and the extent of the commissioners' powers." 
It requires a liberal interpretation of the words "de- 
fines the extent of the commissioners' powers" to find 
in them a warrant for a commission of inquiry making 
not only a finding of facts, but also a finding regarding 



378 The American Philosophy of Government 

the liability, which is in effect an advisory judgment. 
However, the treaty above quoted between Great 
Britain and Russia clearly so interpreted Article X, 
since it declares that the commission is "assembled 
conformably to Articles IX to XIV of the Convention," 
and an interpretation made by the British and Russian 
governments is entitled to great weight. (The official 
correspondence relating to the North Sea Incident 
shows that the draft of the treaty proposed by Lord 
Landsdowne, in behalf of the British government, 
stated in the preamble that the parties agreed "that 
the elucidation of the questions in dispute shall be 
referred to an International Commission of Inquiry 
analogous to that provided for in Articles IX to XIV 
of the Convention," etc., and contained substan- 
tially the same language as was finally adopted re- 
quiring the commission to report on the responsibility 
and the degree of blame; that the Russian government, 
through Count Lamsdorff, proposed a draft with a 
preamble stating that the commission was to be as- 
sembled "conformably to" (conformement aux) these 
articles, and providing that the commission should 
fix the responsibility; that five days afterwards Count 
Lamsdorff telegraphed stating that on the advise of 
Russian jurists (among them M. de Martens) he had 
come to the conclusion that the provision of the British 
draft requiring the commission to fix the responsibility 
and the degree of blame was "contrary to sense of 
stipulation of Hague Convention relating to appoint- 
ment of a commission of inquiry"; to which Lord 
Lansdowne replied, calling attention to the fact 
that the British draft used the word "analogous" 
and that the Russian draft had provided for the com- 
mission fixing the responsibility, and asserting that 
it could not "possibly be contended that the question 



Judicative Conciliation 379 

of responsibility is a question of fact but that the ques- 
tion of blame is not." Lord Lansdowne further said 
that the opinion of the British government was that 
the "question of responsibility and question of blame 
are both questions of fact," and that the word "anal- 
gous" was used in the British draft "for greater 
security in order to meet the kind of objection" 
raised by the Russian government. 

Correspondence relating to the North Sea Incident, 
British Parliamentary Papers, 1905, vol. ciii, p. 369, 
(Cd. 2350), Nos. 43, 72, 76, 77, 78.) 

This novel and extraordinary proposition of the 
British government, that questions of responsibility 
and degree of blame are questions of fact, was evi- 
dently advanced as a diplomatic means of solving a 
difficulty which threatened to halt the negotiations. 
The correspondence immediately following that above 
referred to shows that Russia insisted that it would 
submit the dispute only to a commission of inquiry 
assembled conformably to The Hague Convention, 
and Great Britain that it would submit it only to 
a commission which should determine the responsi- 
bility and the degree of blame. Finally a compro- 
mise was reached by adding the provision extending 
the inquiry so as to include an investigation concern- 
ing the responsibility of the subjects of other powers; 
by calling the instrument a "Declaration" and having 
it signed at St. Petersburg; and by making a joint 
stipulation before signing that ' ' should the instrument 
about to be signed prove in any way inconsistent 
with the stipulations of the Hague Convention in- 
cluded in Articles IX to XIV, the articles of the 
instrument shall be held to override those of the 
Hague Convention 

Ibid. Nos. 82, 83, 84, 88, 90. 



380 The American Philosophy of Government 

The proposition that the questions of responsibility 
and degree of blame are "questions of fact" within 
the meaning of the Hague Convention seems thus to 
have been regarded as untenable, and to have been 
abandoned. The result of the whole correspondence 
is to leave it doubtful whether the parties themselves 
regarded the treaty as providing for the process of "in- 
quiry" mentioned in the Hague Convention. Count 
LamsdorfT well summed up the situation when he 
said, at the end of the negotiations, that "the views 
of the two governments are really identical, since the 
recommendations of the Hague Conference were 
accepted by both as the basis of the commission 
of inquiry, while he fully realized the advantage of 
extending the competency of the court." That is to 
say, both governments accepted the principle under- 
lying the process of "inquiry" as determined in the 
Hague Convention, and instead of making the restricted 
application of this principle which is made by Articles 
IX and XIV of the Convention, gave it an extended 
application under the authority of Article X, by an 
agreement which was also a "Declaration"; thus 
interpreting the Convention according to its spirit, 
though contrary to its letter.) If, however, this in- 
terpretation is to be adopted, it would seem to be 
clear that the Hague Convention really makes pro- 
vision for two kinds of "commissions of inquiry" — a 
"commission of inquiry" in the strict sense and a com- 
mission of inquiry in another sense. It is the purpose 
of this paper to consider with some care the nature of 
the process of settlement applied in the North Sea 
Incident, and the possibilities of the process as a means 
of settling international disputes. 

In the first place, it is to be noticed that the Hague 
Convention for Pacific Settlement, in Article IX, above 



Judicative Conciliation , 381 

quoted, asserts that the primary function of a com- 
mission of inquiry is not merely to find the facts in the 
case, but "to facilitate a solution" of the * 'differences." 
The solution of the differences is to be facilitated "by 
elucidating the facts by means of an impartial and con- 
scientious investigation." The Hague Convention also 
states, in Article XIV, above quoted, that the disput- 
ants have "entire freedom as to the effect to be given 
to this statement [of facts] ' ' — that is to say, the dis- 
putants are free to accept or reject the action of the 
commission of inquiry, or to accept it in part. Any 
dispute, therefore, which is settled by a commission of 
inquiry is settled by the agreement of the disputants, 
and the only function of the commission of inquiry is 
to "facilitate the solution" — that is, to aid the disput- 
ants, by conciliation, to settle their differences them- 
selves by their own agreement. 

Every commission of inquiry, therefore, has for its 
primary purpose the conciliation of the parties. It is 
restricted in its conciliative function to the use of 
judicative methods. It leaves the parties free to act; 
and if the dispute is settled, it is their own agreement, 
induced by the conciliation or not, as the case may be, 
which settles it. The process called "inquiry" in the 
Hague Convention may, therefore, it would seem, ap- 
propriately be described as a process of judicative 
conciliation. If the commission merely finds the facts, 
the process is thus an incomplete process of judicative 
conciliation. If the commission makes a finding of the 
material facts and also gives an advisory opinion con- 
cerning the liability on the facts so found, it is a com- 
plete and perfect process of judicative conciliation. 

Judicative conciliation is to be distinguished from 
either arbitration or the judicial action of a court. A 
commission of judicative conciliation, whether in the 



382 The American Philosophy of Government 

imperfect form described in Article XIV of the Hague 
Convention or in the perfect form as manifested by the 
tribunal in the North Sea Incident, differs from a tri- 
bunal of arbitration in this: The finding of facts and 
the judgment or opinion of a tribunal of judicative 
conciliation are advisory only, and the parties are free 
to accept or reject them, so that it is the parties them- 
selves who finally settle the matter by their voluntary 
agreement ; whereas arbitration implies an obligation of 
the parties to accept and faithfully carry into effect 
the award of the arbitration tribunal. Article XVII of 
the Hague Convention places this obligative feature 
of arbitration beyond doubt, since it states that "the 
arbitration convention implies the engagement to sub- 
mit loyally to the award." This characteristic of 
arbitration was made still more clear in the revision 
of the Convention for the Pacific Settlement of Inter- 
national Disputes made by the Hague Conference of 
1907. In Article XXXVII of the revised Convention 
it was declared that "recourse to arbitration im- 
plies an engagement to submit in good faith to the 
award." 

In political literature dealing with the pacific settle- 
ment of international disputes, and in economic legis- 
lation and literature dealing with the pacific settlement 
of collective industrial disputes, there has been until 
recently much confusion of definition in the use of 
the words "conciliation," "arbitration" and "media- 
tion." It seems to the writer that the following may 
be taken as the proper definitions of each of these 
terms according to the best modern usage: 

Conciliation is the interposition between disput- 
ants, by their consent or acquiescence, of a third per- 
sonality, whose function it is to facilitate the solution 
of the difference in such manner as may be appropriate 



Judicative Conciliation 383 

to the case, so that the parties may agree upon a 
settlement. 

Arbitration is the interposition between disputants, 
by their consent, of a third personality, whose function 
it is to ascertain the facts and to make an award by 
applying to the facts so found established rules ac- 
cepted by or agreed upon by the parties and the society 
of which the parties are members ; the parties being ob- 
ligated to accept the award. 

The conciliating or arbitrating personality may be 
a person, a personality, or a body of persons or per- 
sonalities, wholly external to the disputants, or (if 
the disputants are collective persons) partly external 
to them and partly internal to them, or wholly in- 
ternal to them. That is to say, the conciliator or 
arbitrator between disputant nations or other societies 
may be a third nation or society, an individual who 
is a foreigner, or a body of individuals all of whom 
are foreigners; or it may be a body of individuals part 
of whom are foreigners and part citizens or members 
of the disputants ; or it may be a joint committee com- 
posed wholly of citizens or members of the disputants. 

Mediation is a species of conciliation distinguished by 
the fact that the conciliating personality is a person, 
or a society, or a nation, regarded as co-ordinate or 
equal in status with the disputants. Thus only a 
nation can be said to " mediate" between nations. 
Only a society of the same kind and rank can ' 'mediate " 
between other societies. Only an individual who is 
recognized as a social equal can "mediate" between 
individuals. Conciliation by a personality superior to 
the disputants, or by an agency of the disputants, is 
thus never properly to be spoken of as "mediation." 
This ' ' engagement ' ' or obligation is not only of each of 
the disputa nt nations to the other, but of each of them 



384 The American Philosophy of Government 

to the society of nations. Arbitration, therefore, can- 
not properly be classified as a conciliative process. This 
essential feature of implied obligation to accept the 
award, even if it does not require arbitration to be 
classified as a compulsive process, since the nations are 
free to arbitrate or not to arbitrate, nevertheless dis- 
tinguishes arbitration from judicative conciliation. 

A commission of judicative conciliation is clearly 
different from a' court. A court is the judicial organ of a 
society organized compulsively as a state. A court exists 
and acts under the constitution and laws of the state 
and has the function of finding the facts in cases 
duly brought before it and of applying to the finding 
of facts the principles established by the state as its 
law. A court implies a legislature and an executive, 
and a constabulary under their control to enforce the 
laws, the executive decrees, and the judgment of the 
court. A court, therefore, is an organ of a society 
organized on the principle of compulsion, for the pur- 
pose of applying compulsion like any other organ of 
the state. Judicial action and judicative conciliation 
are, therefore, distinct from each other. 

If the reader is willing to grant, for the sake of argu- 
ment, that there is a distinction between judicative 
conciliation, arbitration and the judicial action of a 
court, and that judicative conciliation is also practicable 
as manifested by the settlement in the North Sea 
Incident, and in a less perfect way by the various 
settlements which have been made by the aid of com- 
missions of inquiry in the strict sense, he will perhaps 
be willing to consider the suggestions made in the fol- 
lowing pages concerning the form of organization of the 
society of nations to which judicative conciliation, as 
a process, properly belongs, and concerning the use 
which may be made of judicative conciliation by the 



Judicative Conciliation 385 

society of nations as a process of pacific (and in a 
sense, judicial) settlement of international disputes. 

First, let us premise that every form of settlement 
of international disputes which is really pacific is, in 
the last analysis, not a process of settlement by the 
parties, but by the society of nations. Every nation 
which mediates between disputant nations, even by 
their request, represents the dignity and the advisory 
influence of the society of nations; so does every com- 
mission of inquiry instituted by disputant nations; so 
does every arbitration tribunal instituted by disputant 
nations, whether the arbitrators be selected from the 
Permanent International Court of Arbitration or with- 
out reference to the panel of that court; so does every 
court which sits in a dispute between nations, whether 
it be a court instituted by one nation, by several na- 
tions, by all nations, or by the society of nations. Every 
process for settling international disputes judicially, 
therefore, is a process whereby the society of nations 
acts as a judicative conciliator, or as an arbitrator, or 
as a judge ; and every commission of inquiry or judica- 
tive conciliation, every tribunal of arbitration, and 
every court convened for the settlement of an inter- 
national dispute, represents in itself the dignity, the 
advisory influence and the interests of the society of 
nations. 

Assuming it to be granted that all the processes and 
organs of pacific settlement are really processes of the 
society of nations, the question arises whether judica- 
tive conciliation, arbitration and judicial action are 
processes of the society of nations conceived of as 
existing under one single form of organization or are 
processes of the society of nations conceived of as 
existing under different forms of organization. It is 
the opinion of the writer that the latter view is correct. 

25 



386 The American Philosophy of Government 

A careful examination of the subject will, it is believed, 
result in the conclusion that judicative conciliation is a 
process of the society of nations conceived of as a 
purely voluntary and cooperative organization, that 
the process of judicial action in the strict sense is a 
process of the society of nations conceived of as a 
compulsive organization and as a federal state, and that 
the form of organization of the society of nations to 
which the process of arbitration ought to be referred 
will depend on whether the obligation of the disputants 
to abide by the award is one of honor merely or is 
enforced by the society of nations. 

In order to determine this question it is necessary to 
consider what is meant at the present time by vol- 
untary or cooperative organization. The principal 
sources of information on this subject are the reports of 
commissions on industrial organization and books 
dealing with the so-called "cooperative movement" in 
industry and the methods of preventing strikes by 
bringing about the pacific settlement of collective in- 
dustrial disputes. A study of the writings on this 
subject seems to warrant the conclusion that the 
voluntary or cooperative organization is now accepted 
as one of the two great forms of organization ; the other 
being the compulsive form. It seems also to be settled 
that the cooperative form of organization, whether 
applied in the industrial, the social or the political 
world, depends upon the coherence of the units, grow- 
ing out of their perception and belief that it is for their 
self-interest to cohere. The self-interest of each unit in 
cohering with the other units arises from their percep- 
tion of and belief in the principle that humanity is so 
constituted that each human unit can obtain more for 
his development and happiness by taking his due share 
of the result of organized cooperative effort in which 



Judicative Conciliation 387 

he duly participates than he can possibly obtain by 
his own isolated and unaided effort, and vastly more 
than he can obtain by effort directed to competition 
or other form of struggle or warfare. What is true of 
the original human unit — the individual — is also true 
of the derivative and artificial human unit — the nation. 
If each nation, like an individual, perceives and believes 
that it can, in the long run, by a primeval, universal and 
unalterable law of God, obtain more for its development 
and happiness by taking its due share of the cooperative 
effort of a cooperatively organized society of nations, 
than it can possibly obtain by its isolated and unaided 
effort or by its effort directed towards competition 
with other nations involving struggle and warfare, it 
will, as a matter of self-interest, organize itself coop- 
eratively with other nations so that all will form a 
cooperative organization, and it will cohere with the 
others in the organization out of its own self-interest. 
Therefore, the cooperative form of organization is in 
the highest sense reasonable and practicable. 

In the cooperative form of organization, self-interest 
induces the members to cohere and to perfect the or- 
ganization as a means of advancing their own self- 
interest. They therefore settle their disputes pacifically. 
Not only does the organization and its object of mutual 
benefit give them a desire to cooperate peacefully 
and a standard by which they can settle their disputes, 
but every dispute appears to them as an obstruction 
to the working of the mutual benefit organization, and 
therefore contrary to the self-interest of every member. 
As the result to be obtained in the settlement of dis- 
putes is cooperation, and as cooperation implies vol- 
untary action impelled by self-interest, all settlements 
of disputes in societies which have the cooperative 
form of organization take place by conciliation. 



388 The American Philosophy of Government 

Cooperative organization is, therefore, based on 
conciliation, and peace and cooperative organization 
are synonymous terms. Though, as an exceptional 
matter, force may be used, it can be used consistently 
only to the extent that it aids conciliation. Thus, 
even war between nations may, under some circum- 
stances, be not inconsistent with the cooperative (and 
therefore peaceful) organization of the society of 
nations. If it is in aid of conciliation and cooperation, 
it may be justifiable. The fact that force may thus be 
used in a cooperative organization does not, however, 
alter the fundamental principle that all the processes 
of the cooperative organization of the society of nations, 
which is the only peaceful form, are conciliative. 

If this be granted, judicative conciliation appears as 
a process of the society of nations conceived of as a 
cooperative organization, which is, in fact, a coopera- 
tive federation of nations. The primary process in the 
society of nations conceived of as cooperatively or- 
ganized is, of course, negotiative conciliation. This is 
manifested continually by the action of secretaries of 
foreign affairs and diplomats who represent each his 
own nation and the society of nations in finding a 
means of settling disputes between nations consistently 
with the cooperative organization of the society of 
nations. It is manifested also in acts of mediation of 
nations between disputant nations. The second process 
in the society of nations conceived of as cooperatively 
organized is judicative conciliation. The third process 
is that of formulating rules of the society of nations 
to determine future action and relationship between 
nations, so that they may preserve the cooperative 
organization and so that the organs of judicative con- 
ciliation may have established rules to interpret and 
apply. This process (which may perhaps be described 



Judicative Conciliation 389 

as regulative conciliation) is now carried on in various 
antiquated and informal ways through the writings of 
publicists, the proceedings of societies of international 
law, etc. The society of nations, conceived of as a co- 
operative federation of nations, thus manifests itself 
through the major processes of negotiative, judicative 
and regulative conciliation, and is a voluntary organi- 
zation. The society of nations, conceived of as a 
state, whether federal or unitary, manifests itself 
through the major processes of legislation, judication 
and execution, and is a compulsive organization. 
Judicative conciliation is, therefore, it would seem, one 
of the three major processes of the society of nations, 
conceived of as organized on the voluntary and co- 
operative plan. 

The judicial process of action in disputes between 
nations, regarded as a process of the society of nations, 
is, it would seem, clearly to be regarded as a process of 
the society of nations conceived of as organized into a 
federal state — that is to say, conceived of as organized on 
the compulsive and state plan and not on the voluntary 
and cooperative plan. If this be true, the application of 
the judicial process in the settlement of international dis- 
putes seems to imply, in the long run, not only a federal 
court of the society of nations, but a federal legislature 
and executive, together with a federal constabulary as 
a means of enforcing the federal legislative, executive 
and judicial action. The process of judicial action in 
disputes between nations is, therefore, it would seem, 
properly to be regarded as one of the three processes 
of the society of nations conceived of as organized 
compulsively and as a federal state. 

The arbitral process in disputes between nations, 
regarded as a process of the society of nations, seems 
difficult to classify. It is not a process of the society 



390 The American Philosophy of Government 

of nations conceived of as a purely voluntary and co- 
operative organization, since the implied obligation of 
the disputants to the society of nations to accept the 
award gives it a compulsive quality and makes it 
impossible to regard it as a conciliative process. Nor 
can arbitration be regarded as a process of the society 
of nations conceived of as a federal state, since the 
federal state does not enforce the obligation of the dis- 
putants by its constabulary power, but regards the 
obligation as one of honor. If the society of nations 
should ever enforce by constabulary action the obliga- 
tion of the disputants to abide by the arbitral award, 
the process of arbitration would clearly be a process of 
the society of nations organized as a federal state. 

It, therefore, seems clear that judicative conciliation 
and judicial action by courts are processes of two anti- 
thetical — or, perhaps, complementary — forms of organi- 
zation, and that the use of judicative conciliation in the 
pacific settlement of disputes between nations implies 
that the society of nations is a voluntary and coopera- 
tive federation of nations; whereas the use of judicial 
action of courts implies that the society of nations is a 
federal state, of which the nations are member-states. 
If both these processes were used by the society of 
nations, it would seem necessarily to imply that its 
organization was one of a mixed form — partly that of 
a cooperative organization and partly that of a federal 
state. It is perhaps on account of the ambiguity of the 
process of arbitration as referable either to one form of 
organization or the other that it has become so well 
established. An ambiguous process which some may 
regard as voluntary and others as compulsive seems to 
fit the present situation, in which some contend that the 
society of nations is a voluntary and cooperative society 
and others that it is a compulsive and federal state. 



Judicative Conciliation 391 

The question then arises whether those interested in 
international political science should not study and 
promote judicative conciliation, as well as arbitration 
and strictly judicial action. As has been said, an arbi- 
tral tribunal, though in most respects voluntary and 
conciliative, is in one respect obligatory and compulsive, 
since nations which agree to arbitrate thereby bind 
themselves in honor to each other and to the society 
of nations to accept the award, whether they believe 
it to be just or unjust, and whether or not they believe 
they are violating their own proper self-interest and 
the interest of the society of nations in so doing. Na- 
tions are cautious about so submitting to an external 
judgment, and therefore arbitration may, in the long run, 
possibly be found to be useful principally for settling dis- 
putes between nations which are of minor importance. 
A court of the society of nations would seem to imply 
a compulsive form of organization of the society of na- 
tions and to involve, in the long run, the transformation 
of the society of nations into a federal state in which the 
nations would be member-states, with a federal legis- 
lature, executive and constabulary in addition to the 
federal court. This seems clearly to be beyond the 
range of practical politics, even if its desirability should 
be granted. Undoubtedly so far as the society of 
nations can be said to have any organization, or any 
constitution, at the present time, the prevailing prin- 
ciple of that organization is cooperation through the 
wholly voluntary coherence of the nations, based on the 
perception and belief that it is for their self-interest 
to cohere and cooperate. The society of nations thus 
conceived of as existing exercises, and is expected by the 
nations to exercise, only an advisory influence, concili- 
ating the nations by its advice given through organs 
which it constitutes or sanctions. It would seem wise, 



39 2 The American Philosophy of Government 

therefore, to study the imperfect conciliative processes 
of the present cooperative federation of nations with 
a view to perfecting them, having in mind that it may 
be found necessary to relegate arbitration to the posi- 
tion of a minor and subsidiary process of pacific settle- 
ment, and to postpone the plans for the establishment 
of a court until it shall become evident that the nations 
of the world are ready to form themselves into a federal 
state and provide themselves with a federal legislature 
and executive, as well as a federal court, and with a 
federal constabulary to enforce the federal laws, the 
federal executive action and the judgments of the fed- 
eral court. Such a study would involve the acceptance 
of judicative conciliation as a major process of the co- 
operative organization of the nations, and this process 
would be studied along with the other two major 
processes of negotiative conciliation and regulative 
conciliation. 

Even through the gloom which the present war has 
cast over the whole world we see cooperative organi- 
zation — now partly turned to war uses and partly 
directed toward peaceful control of the material and 
human forces of the universe to the mutual benefit of 
the nations and their people — making wonderful prog- 
ress everywhere. In the industrial world, before the 
war, cooperation already had become firmly estab- 
lished. Great industrial societies and groups were or- 
ganized in all the nations on the voluntary and coop- 
erative basis and settled their disputes by conciliative 
processes through conciliative organs. Each progressive 
nation itself cooperated in the cooperative industrial 
organization and sanctioned and encouraged, or insti- 
tuted, all kinds of processes and organs of conciliation. 
After the war, it seems far more likely that the prin- 
ciples of cooperative organization will extend them- 



Judicative Conciliation 393 

selves into the society of nations and convert that soci- 
ety into a more perfect cooperative union, than that 
the nations will dissolve their present imperfect co- 
operative organization and revert to a mere aggregation 
of competitive, struggling and warring units. Their 
self-interest in cooperation, seen more clearly as the 
result of the great war, will drive them, it may reason- 
ably be hoped, to more perfect coherence and coopera- 
tion through processes and organs of conciliation in- 
stituted or sanctioned by the will and judgment of all 
of them assembled in general conference. 

In what has been said it has not been the purpose 
to speak dogmatically and to advocate any diminution 
on the part of the members of the Society for Judicial 
Settlement of International Disputes in the pressure 
for the settlement of international disputes by arbitra- 
tion, or to weaken the enthusiasm of those members 
who demand the establishment of a court of the society 
of nations. Arbitration is an established process. If 
nations can settle their disputes peaceably by arbitra- 
tion, by all means let us encourage them to do so. If 
a court of the society of nations can be established 
without converting the society into a federal state, or 
if we believe such conversion is practicable and desir- 
able, let us press for the establishment of the court. 
All that is intended to be said in this paper is that in 
the great work of promoting the judicial settlement of 
international disputes we should not overlook the pos- 
sibilities which lie in judicative conciliation, both in its 
imperfect form of ' 'inquiry" under the definition of 
Article IX of the Hague Convention for Pacific Settle- 
ment and in its perfect form of judicative conciliation 
as manifested in the settlement of the North Sea Inci- 
dent. It is always wise to hold fast to all that has 
proved itself good in many instances; therefore, we 



394 The American Philosophy of Government 

must hold fast to arbitration. It is also wise sometimes 
to plan for a revolutionary change. Therefore, we may 
plan for a court of the society of nations; though the 
burden is in that case on us. But it is certainly also 
wise to hold in mind and consider carefully that which 
has proved good even in one case; for it may be that, 
if carefully studied and more generally applied, it will 
be found useful in many other cases. 



THE PROPOSED CODIFICATION OF INTER- 
NATIONAL LAW AND THE RELATION 
OF CODIFICATION TO THE PROPOSED 
ESTABLISHMENT OF A SUPREME IN- 
TERNATIONAL COURT OF ARBITRAL 
JUSTICE 



395 



THE PROPOSED CODIFICATION OF INTER- 
NATIONAL LAW AND THE RELATION 
OF CODIFICATION TO THE PROPOSED 
ESTABLISHMENT OF A SUPREME IN- 
TERNATIONAL COURT OF ARBITRAL 
JUSTICE 

Address delivered at the Annual Meeting of the American Society of 

International Law, held at Washington, April 27-29, 191 1. 

Reprinted from the proceedings of the Society for the year 191 1. 

THE proposal to establish a supreme international 
court of arbitral justice, and the accompanying 
proposal to codify international law, bring up, 
as a preliminary consideration, the question whether 
international law, so-called, is true law, in the sense in 
which the word "law" is used in the science of juris- 
prudence; and if so, what is its nature and scope and 
its relation to other law. A court of justice implies the 
existence of law. Codification involves a scientific 
arrangement of principles which have been formu- 
lated in precise language and which have been es- 
tablished as laws. When we use the word "court " and 
"codification" we are using terms of jurisprudence. 
We cannot establish an international court or codify 
international law unless we can first establish the propo- 
sition that international law, so-called, is true law. It 
becomes necessary therefore to consider the require- 
ments which are necessary in order that a body of rules 
may be law, in the sense of the science of jurisprudence. 
Professor Holland says, in his book on Jurisprudence 

397 



398 The American Philosophy of Government 

(nth ed., pp. 88, 89. The first sentence of the quota- 
tion is transposed, but the meaning is not changed) : 

Law is formulated and armed public opinion, or the opin- 
ion of the ruling body. . . . The real meaning of all law- 
is that, unless acts conform to the course prescribed by it 
the State will not only ignore and render no aid to them, but 
will also, either of its own accord or if called upon, intervene 
to cancel their effects. The intervention of the State is 
what is called the "sanction" of law. . . . [Law] defines 
the rights which it will aid, and specifies the way in which it 
will aid them. So far as it defines, thereby creating, it is 
' ' substantive law. ' ' So far as it provides a method of aiding 
and protecting, it is "adjective law" or procedure." 

Also he says (page 80) : 

Law is something more than police. Its ultimate object 
is no doubt nothing less than the highest well-being of so- 
ciety, and the State, from which law derives all its force, is 
something more than a " Rechtsversicherungsanstalt " or 
"Institution for the protection of rights" as it has not in- 
aptly been described. 

A law — that is, a particular law, as distinguished 
from the whole body of law of a political society — 
Professor Holland defines (page 42) as "a general rule 
of external human action enforced by a sovereign po- 
litical authority." 

Rules of human action " enforced by indeterminate 
authority," that is, enforced by the censure of general 
public opinion, or by the censure of the opinion of a 
given political society, fall, according to Professor 
Holland (page 28), within the domain of the science of 
nomology, but not within that of the science of juris- 
prudence. "Rules set by [a sovereign political au- 



Proposed Codification 399 

thority]," he says (page 41), "are alone properly called 
'laws.'" 

The process of formulating law proceeds in two gen- 
eral ways, according as the given political society holds 
one notion or another of its relations with the past. A 
political society may abide by custom, and set up as its 
government a judicial body — not necessarily repre- 
sentative of territorial districts — which will investigate 
and ascertain usage, will determine when usage has 
grown into custom, will adjudicate whether the custom 
is "reasonable" or not, will formulate reasonable cus- 
tom in terms of law, and will place the stamp of au- 
thority upon such formation and make it law. On 
the other hand, a political society may disregard cus- 
tomary modes of action and relationship, and set up 
a legislative body — usually representative of terri- 
torial districts which will formulate new rules — statutes 
— by deliberative methods. Political societies in fact 
exist generally under law which is in part customary 
and in part statutory, customary law being super- 
seded by statutory law in case of conflict between them. 
As Professor Holland says (pages 60, 62) : 

The State, through its delegates the judges, undoubtedly 
grants recognition as law to such customs as come up to a 
certain standard of general reception and usefulness. To 
these the Courts give operation, not merely prospectively 
from that date of such recognition, but also retrospectively; 
so far implying that the custom was law before it received 
the stamp of judicial authentication. . . . The legal 
character of reasonable ancient customs is to be ascribed, not 
to the mere fact of their being reasonable ancient customs, 
but to the existence of an express or tacit law of the State 
giving to such customs the effect of law. . . . [The 
State] sometimes in express terms denies [customs the force 
of law], and sometimes limits the force which has hitherto 



400 The American Philosophy of Government 

been ascribed to them. In some States greater force has 
been allowed than in others to customs as compared with 
express legislation. 

From Professor Holland's analysis, it is to be con- 
cluded, that there are three elements which must exist 
in order that there may be law in the sense of the science 
of jurisprudence; first, a body of persons on a definite 
territory living together in an organized political so- 
ciety, free from all control or free from control other 
than that of the society of nations; second, a definite 
body of persons within the society who authoritatively 
formulate into rules the existing customs of the society 
or who authoritatively formulate new rules for current 
exigencies without regard to custom, or who perform 
both functions; and, third, a definite body of persons 
within the society who authoritatively enforce the rules 
so formulated. 

The question arises whether or not international law 
so-called, conforms to these requirements, or whether 
we must exclude international law from the science of 
jurisprudence, and treat it as a part of the more in- 
clusive science of nomology. In the latter case, we 
shall be logically compelled to discontinue the use of 
the expression "international law," and to substitute 
for it the expression "international moral rules"; for 
in this view there is only a body of rules which the 
nations as isolated units follow as governing their con- 
tacts or conflicts, and which are enforced by indeter- 
minate authority, that is, by the censure of public 
opinion; moreover, it will be logically necessary that 
all international organization shall take the form of 
popular education and political propaganda, in order 
that the popular censure may be rightly directed. This, 
it is to be feared, will lead to excommunication or boy- 
cott. Should this be the case, there will arise inter- 



Proposed Codification 401 

national hatred, malice, conspiracy, and secret war- 
fare, the inevitable results of excommunication which 
will be likely to lead to international political chaos. 
Every consideration of expediency and justice favors, 
it would seem, the bringing of international law into 
the realm of jurisprudence, if that be reasonably pos- 
sible. Indeterminate rules, enforced by an indeter- 
minate authority, tend, in the long run, to create dis- 
order and war. 

It seems that, looking at the facts of the political life 
of the world, it is reasonable to say that international 
law, at the present moment, does in fact conform to the 
requirements which Professor Holland so ably lays 
down as essential to the conception of true law. Take 
the first requirement, that there must exist a definite 
organized political society. A political society exists 
when its people recognize themselves as united in a 
society; and it seems wholly consistent with actual 
facts to say that the peoples and nations of the world 
are, by the necessity of the case, and by their recogni- 
tion of their political unity, united at the present mo- 
ment in a political society which is known as "the so- 
ciety of nations;" that this political society exists 
under an unwritten constitution and a general law; 
and that that which we call international law is in fact 
at the present moment a supreme law emanating from 
the people and nations of the society of nations. 

Professor Westlake, in his International Law, says 
(Part I, Peace, Ed. 1910, pp. 1, 6, 7): 

International law, otherwise called the law of nations, is 
the law of the society of states or nations. . . . When 
international law is claimed as a branch of law proper, it is 
asserted that there is a society of states sufficiently like the 
state society of men, and a law of the society of states suffi- 
ciently like state law, to justify the claim, not on the ground 

36 



402 The American Philosophy of Government 

of metaphor, but on the solid ground of likeness to the type. 
. . . States live together in the civilized world sub- 
stantially as men live together in a state, the difference 
being one of machinery, and we are entitled to say that 
there is a society of states and a law of that society, without 
going beyond reasonable limits in assimilating variant cases 
to the typical case. 

The second requirement, that there should be an au- 
thoritative formulating body within the society, seems 
at first glance to be an insuperable obstacle to consider- 
ing international law as true law. When, however, 
it is considered that the society of nations is of a com- 
posite and federalistic character, being made up not only 
of the peoples, but also of the nations of the world, the 
difficulty begins to resolve itself. Such a composite 
political society may evolve a supreme law without 
having a specially designated formulating body; for it 
may be so constituted that there may be an informal 
drafting process, and that the component states or 
nations may place their separate confirmation and au- 
thentication upon the rules formulated, until there 
comes about a formulation which is approved by the 
general consensus of them all. The formulation of the 
law of the society of nations seems to take place in this 
manner. A drafting process occurs through the writ- 
ings of scholars, and through the briefs and notes of 
diplomatic officers, and the rules thus formulated are 
confirmed and authenticated by the separate nations 
by acting upon them in cases where they are applicable. 
By the treaties and arbitrations of the nations, and by 
international conferences, even sometimes by war, there 
arises a consensus upon a certain formulation and that 
formulation becomes a law of the society of nations. 

The nations in this process may, it would seem, prop- 
erly be conceived of as the judicial agents and delegates 



Proposed Codification 403 

of the society of nations for ascertaining and declaring 
the customary law of the society, or as an informal 
legislature of the society. All or the greater part of 
the law of the society of nations is undoubtedly cus- 
tomary, and treaties, arbitral and judicial decisions, 
international conferences, and all forms of diplomatic 
settlement are parts of the formulating and authenti- 
cating process by which the laws of the society of 
nations are evolved, and given the sanction of the 
society. 

The third requirement, that there should be a definite 
body of persons within the society to enforce the law, 
is, it seems, complied with also by the fact that the 
nations are the component units of the society of nations. 
By their armed forces, they enforce the law of the so- 
ciety of nations as the authorized agents and delegates 
of the whole society for this purpose. 

It seems, therefore, that we may conclude that that 
which we call international law is really the law of the 
society of nations, and that it is true law, in the sense 
of jurisprudence. 

If this be granted, it follows that, as the society of 
nations is of a composite and federalistic character, 
the law of the society of nations must be federalistic 
in character, that is to say, that it must relate to those 
matters which are external to each nation and of com- 
mon interest to all the nations, or which are beyond the 
competency of the single nations. 

If this be so, the present classification of international 
law into divisions and headings will be much altered. 
The present classification dates from the period when 
international law was conceived of in terms which 
really made it nothing but the usages of isolated nations, 
usages which every nation was free to follow or not ac- 
cording to its own mere will and without giving any 



404 The American Philosophy of Government 

reason or explanation. In those days, the primary 
conception of international law was of each nation as 
a political unit isolated from all the rest, instead of as a 
component unit of a society of nations. Hence all 
classification began with the idea of each nation as in- 
dependent of and equal with every other, those com- 
munities which were under the control of a nation 
though not partaking of its political life being regarded 
as non-existent for international purposes or as merged 
in the international personality of the "sovereign" 
nation. From such a conception it inevitably followed 
that international "law" dealt with the contracts or 
clashings of political units which, desiring to live as 
hermits, found themselves forced into contact or con- 
flict with other units of equally unsocial aspirations. 
In text-books of international "law," after the in- 
dependence and equality of nations had been sufficiently 
elaborated ,the authors proceeded to consider the ques- 
tions of unsocial contact and the means of settling the 
questions growing out of such contact by diplomatic 
adjustment, by treaty or by arbitration. Lastly, the 
subject of war was considered, as the means of working 
off the humors of mutual unsociability or preventing 
that unsociability which took the form of forcible ag- 
gression. 

From the study of the evolution of political societies 
which has been made by various authors during the past 
half century, it is evident that the society of nations 
has gone through the same process as has often taken 
place with respect to families and clans, until it has 
finally reached a political unity. The process seems 
in general to be this : The patriarchal or clan commu- 
nity tends to isolate itself. A number of such com- 
munities, though living near to one another, at first 
have no common law and no law for their common 



Proposed Codification 405 

purposes. They fight when they come in contact, or 
settle their disputes by some rude form of arbitration. 
As these communities increase in size and number, the 
contacts become more frequent, and, to avoid inces- 
sant fighting, they settle more and more disputes by 
agreement or arbitration. A settlement made in one 
case tends to be followed in another similar case, and 
usage begins. Then this usage becomes so frequent 
that it is followed generally and as a matter of course. 
The usage thus becomes a custom. Finally the families 
or clans become so intimately associated with one an- 
other that they begin to recognize themselves as forming 
one united society and to think of the customs which 
have been established as laws of the society, that is, 
as laws emanating from the people of the society as an 
organized unity. It soon becomes important to have 
the customs formulated and written down, and persons 
more or less authorized by public sentiment begin to 
formulate them. Then a tribunal is instituted to 
ascertain the customary law and to formulate it and 
apply it to particular cases. Then, as it is not fair that 
some should obey the law and others not, the society 
institutes a law-enforcing body and arms this body so 
that it may compel all to comform to the customary 
law. Soon the customary law is found inadequate to 
cover all cases or to be violative of ethical principles, 
and the society institutes tribunals with equity powers, 
that is, with power to apply ethical standards to cus- 
toms and to nullify those which are unreasonable, and 
to infer a custom, where there is no actual custom, by 
considering customs established in analogous cases and 
applying the principles of right and wrong as deter- 
mined by the reason and conscience of religious and edu- 
cated men. Then the society establishes a law-making 
and law-changing body, which can disregard and nullify, 



406 The American Philosophy of Government 

if it sees fit, the customary law, and which can, if it sees 
fit, disregard ethical standards. Finally, even this 
body is subjected to ethical standards formulated as a 
part of the customary and universal law and applied 
by the courts or other suitable tribunals. 

There can be no doubt that the nations of the world 
have progressed to the point where they recognize 
themselves as living under customary rules, enforced 
by the censure of public opinion. There is good rea- 
son to believe that they have progressed beyond this 
stage, and that, while preserving the idea of independ- 
ence and equality, they tend more and more to recog- 
nize themselves as member-nations of the society of 
nations. The movement for an international court of 
arbitral justice is a recognition of the need of an au- 
thoritative body for formulating the customary law of 
the society of nations, subject to confirmation, authen- 
tication and enforcement by the nations. Whether 
the society of nations will find it necessary to establish 
a law-making body, or even any law-formulating body, 
other than the Hague Conferences, and whether it will 
ever establish a law-enforcing body, may well be 
doubted. It may well be that for such a society a 
customary law may prove the strongest, because the 
most elastic bond of union, and that the ultimate cen- 
tral body will be a supreme court whose action in formu- 
lating the customary law will not be final, but will be 
subject to confirmation, authentication and enforce- 
ment by the nations. 

If international law be thus regarded as the law of 
the society of nations, dealing with matters external to 
each state and common to all or beyond the competency 
of the units singly, and hence as federal in its nature, it 
becomes necessary to distinguish this kind of law from 
national law on the one hand and from what may per- 



Proposed Codification 407 

haps be called "the supreme universal law" on the 
other. Every one understands what national law is, 
and every American, accustomed to the distinction 
between State law and Federal law, perceives the dis- 
tinction between national law and the federal law of the 
society of nations. But the conception of "supreme 
universal law," though distinctly American and indeed 
the basic idea of all American political and legal in- 
stitutions, is not yet familiar even to American students. 
To illustrate: By the Fifth and Fourteenth Amend- 
ments to the Constitution of the United States, every 
court within American jurisdiction, even the court of a 
justice of the peace, is recognized as having authority 
to disregard any governmental action whatsoever which 
deprives the individual of his life, liberty or property 
without due process of law. If the court does dis- 
regard governmental action on this ground, the case 
may go on appeal to the Supreme Court of the United 
States ; and if that court is of opinion that the govern- 
mental action in question deprives the individual of his 
life, liberty or property without due process of law, the 
governmental action in question, even though it be the 
action of Congress, is nullified. This is American law, 
formulated in amendments to the Constitution of the 
United States ; but we do not hold it as law merely be- 
cause it is a part of the Constitution. It can be 
proved historically that the Constitution in this respect 
is regarded by us as declaratory of the supreme uni- 
versal law. These rights "life, liberty, and property" 
which the Constitution secures against infringement 
by governmental action, are the fundamental rights of 
self -protection and self-preservation, corresponding to 
those attributes of life, motion, and prehension by 
which all men are equally endowed by God, and the 
use of which is equally needful for every human being 



408 The American Philosophy of Government 

for his self -protect ion and self-preservation. The un- 
derlying principle of Magna Charta was, that society 
exists and governments are instituted primarily to se- 
cure these universal and fundamental rights and that 
hence the powers of all governments are limited by 
these fundamental rights of the individual. In the time 
of Coke, these fundamental principles of law were 
formulated in the words of our Constitution, and Eng- 
lish judges asserted that the English courts had juris- 
diction, under this law, as a supreme universal law, to 
disregard and nullify all governmental action in viola- 
tion of the fundamental rights of the individual. But 
English public opinion, in view of the military and eco- 
nomic exigencies of England, failed to sustain this 
view, and the action of the English Parliament was 
recognized as supreme in England, through the fiction 
that it was a high court. In the American Revolution, 
America relighted the torch of progress which had been 
extinguished in Great Britain. The Continental Con- 
gress, in the Declaration of Independence, answered 
Great Britain's claim of legally-unlimited power over 
the Colonies by asserting that there are fundamental 
rights of the individual under the supreme universal 
law, that society exists and governments are instituted 
primarily to secure these rights, and that by this law 
the powers of Great Britain and of every nation and 
government were and are legally limited. The Civil 
War was fought by the North to uphold this supreme 
universal law, and after the war the principle that 
throughout American jurisdiction no person should, by 
any governmental action, be deprived of his life, liberty, 
or property without due process of law, was formulated 
in the Constitution and was thus made a part of the 
supreme law of the land which all courts are bound 
to enforce. 



Proposed Codification 409 

If, therefore, the society of nations is to be consistent 
with the American political ideas, it must recognize 
itself as existing under this supreme law, as distin- 
guished both from international law and national law. 
If courts are established by the society of nations to 
ascertain and apply the law of the society, or if one such 
court is established with supreme judicial powers, it 
must be understood that over and above the law of the 
society of nations, which is supreme over national law, 
there exists a supreme universal law by the terms of 
which all courts are entitled to disregard, and in effect 
nullify, all governmental action involved in suits duly 
pending before them, even national laws or acts, or the 
laws or acts of a group of nations, or the laws or acts 
of the society of nations, which violate the fundamental 
rights of the individual. Indeed, as a prerequisite to 
the establishment of an international supreme court 
or the codification of international law, it would seem 
most desirable that there should be formulated a "con- 
stitutional bill of rights" (as Americans say) of the 
society of nations, which would safeguard the inter- 
national supreme court in the performance of its duty 
to disregard and nullify any governmental action which 
should violate the fundamental rights of the individual. 

The following tentative "Suggestions concerning a 
system of division and classification of the principles of 
International Law regarded as the Federal Customary 
Law of the Society of Nations," will illustrate the sys- 
tem of classifying the principles of international law, 
which it will be necessary to adopt if the views above 
expressed should be accepted : 

Suggestions concerning a system of division and classification 
of the principles of International Law regarded as the 
Federal Customary Law of the Society of Nations. 



410 The American Philosophy of Government 

PART I. ORGANIC PROVISIONS 

Chapter I. 
The names and boundaries of the component Nations 
forming the Society of Nations. 

Chapter II. 
Character of the component nations. 

(a) Independence. 

(b) Equality. 

Chapter III. 

Admission of new members into the Society of Nations. 

(a) Declaration of Independence, by non-national com- 
munities, and recognition by the nations. 

(b) Division of nations by agreement and acquiescence 
by the other nations. 

(c) Junction of nations by agreement and acquiescence 
by the other nations. 

Chapter IV. 
States having a qualified membership in the Society of 
Nations. 

(a) Protected states. 

(b) Neutralized states. 

(c) Supervised states. 

Chapter V. 

States having membership in the Society of Nations 
through a delegate Federal Government or a delegate 
Nation. 

(a) Member states of federal states. 

(b) Self-governing colonies of nations. 

(c) Partially self-governing colonies of nations. 

(d) Non-self-governing colonies of nations. 

(e) Communities on reservations and under tutelage. 

(f) Communities within the sphere of influence of a 
nation. 



Proposed Codification 411 

Chapter VI. 

Participation in the Franchise and Governmental Power 
of the Society of Nations. 

(a) Civilized nations as participants in the political life 
of the society of nations. 

(b) Partly civilized and barbarous nations as partici- 
pants in the political life of the society of nations. 

Chapter VII. 

Expansion or Contraction of Nations with the acquies- 
cence of the Society of Nations. 

(a) By cession or annexation of territory and population, 
without incorporation. 

(b) By cession or annexation of territory and popula- 
tion, with incorporation. 

Chapter VIII. 

Relations between the Nations and the Society of Nations. 

(a) Reservation to the nations of all powers which are 
not necessary to be exercised by the society of na- 
tions for the general welfare. 

(b) The society of nations the disposer and regulator of 
those things, activities and relationships which are 
beyond the competency of any particular nation 
and in which all have an interest. 

Chapter IX. 

The Law-formulating and Law-authenticating Agents of 
the Society of Nations. (Acting for the Society of Nations 
by implied delegation.) 

(a) Diplomatic agents of nations. 

(b) Treaty-making officials and bodies. 

(c) Foreign departments of nations. 

(d) International arbitral tribunals having diplomatic 
powers. 

(e) Conferential bodies of delegates^of nations. 



412 The American Philosophy of Government 

(f) National courts sitting as international courts (ap- 
plying international law). 

(g) International courts. 

(h) National executives (by message or proclamation) . 
(i) National legislatures (by declaratory act). 

Chapter X. 

The Law-enforcing Agents of the Society of Nations. 
(Acting for the Society of Nations by implied delegation.) 

(a) National executive officials and bodies acting as dele- 
gated executives of the society of nations. 

(b) National armies acting as armies of the society of 
nations. 

(c) National navies acting as navies of the society of 
nations. 

Chapter XI. 

The nature of the Law of the Society of Nations. 

(a) The law of the society of nations as customary law. 

(b) The law of the society of nations as statutory law. 

(c) The supremacy of the statutory over the custom- 
ary law. 

Chapter XII. 

Supremacy of the Law of the Society of Nations over 
National Law. 

(a) The law of the society of nations, the supreme law 
of the land throughout the society of nations, and 
hence supreme, for the common purposes, over na- 
tional law. 

Chapter XIII. 

Supremacy of the Universal Law. 

(a) The principles of universal law securing the rights 
of the individual to religious freedom, and to life, 
liberty, and property as against all governmental ac- 



Proposed Codification 413 

tion, supreme over the law of the society of nations, 
national law, and all other law. 

Chapter XIV. 

International Faith and Credit. 

(a) Between civilized nations. 

(b) Between uncivilized nations. 

PART II. REGULATIVE PROVISIONS. 

RIGHTS. 

Chapter I. 

Rights of individuals against governments under the su- 
preme universal law (which forms part of the law of the 
Society of Nations as of all other law) . 

(a) That neither the society of nations nor any nation 
shall prohibit the worship of God, or unduly regulate 
religious practices not violating private rights or the 
public peace and order. 

(b) That neither the society of nations nor any nation 
shall deprive any person of his life, liberty, or prop- 
erty without due process of law, or impair the ob- 
ligation of contracts. 

Chapter II. 

Rights of the Society of Nations against the Nations. 

(a) The right of the society of nations to settle disputes 
between nations. 

1 . Arising under treaties. 

2. Arising out of national tortious acts. 

3. Arising out of conflicting boundary lines. 

(b) The right of the society of nations to regulate the 
common property of all. 

1 . Navigation of the high seas and the upper air. 

2. Pelagic fishing and hunting. 

3. Piracy on the high seas or in the upper air. 



414 The American Philosophy of Government 

(c) The right of the society of nations to regulate in- 
ternationalized persons, property, land, or water. 

1 . Regulation of the Hague Tribunal and Red Cross 
officials and employees. 

2. Regulation of Red Cross ships and supplies. 

3. Regulation of the International Court and Tri- 
bunal property. 

4. Regulation of internationalized rivers, channels, 
or canals. 

(d) The right of the society of nations to intervene in 
the inner life of nations or countries to end anarchy 
and establish just government. 

1 . Joint intervention by several nations in behalf of 
the society of nations. 

2. Intervention by the nearest or most interested 
nation in behalf of the society of nations. 

Chapter III. 

Rights of Nations against Nations, each in its own 
right. 

(a) The right to national life and liberty. 

1 . Intercourse between citizens of different nations. 

2. Trade between citizens of different nations. 

(b) The right to national property. 

1. National territory. 

2. Territory gained by accretion. 

3. Territory gained by peaceable occupancy and 
prescription. 

(c) The right to the performance of contracts. 
1 . Binding force of treaties. 

Chapter IV. 

Rights of Nations against States which are not full mem- 
bers of the Society of Nations, and vice versa. 

(a) Protecting nations and a protected state. 

(b) Concerts of states and neutralized states. 



Proposed Codification 415 

Chapter V. 

Rights of Nations against external communities not mem- 
bers of the Society of Nations, and vice versa. 

(a) Nations and their colonies. 

(b) Nations and native communities on reservations. 

(c) Nations and aboriginal communities within a sphere 
of influence. 

Chapter VI. 

Rights of Nations as representatives of their citizens 
against other Nations in their own right, and vice versa. 

(a) Alienage as determined by citizenship of birth or by 
citizenship of naturalization. 

(b) Breach by nations of their contracts with aliens. 

(c) Tortious acts by nations against aliens. 

(d) Breach by aliens of their contracts with nations. 

(e) Crimes committed by aliens. 

(f) Admission of aliens. 

(g) Expulsion of aliens. 

(h) Civil rights and duties of resident aliens, 

(i) Political rights and duties of resident aliens. 

(j) Extradition of aliens, 

(k) Extradition of citizens. 

Chapter VII. 

Rights of Nations as representatives of their citizens 
against other Nations as representatives of their citizens. 

(a) Contracts between citizens of different nations. 

(b) Tortious acts by citizens of one nation against citi- 
zens of another nation. 

REMEDIES. 

Chapter I. 

Remedies of Nations against other Nations, each acting 
in its own right. 

(a) Arbitration by a specially constituted tribunal. 



41 6 The American Philosophy of Government 

(b) Arbitration before the Hague Tribunal. 

(c) Decision by an international supreme court. 

Chapter II. 

Remedies of Nations as representatives of their citizens 
against Nations in their own right. 

(a) Decision by tribunals of the defendant nation. 

(b) Arbitration by a specially constituted tribunal. 

(c) Arbitration before the Hague Tribunal. 

(d) Decision by international courts. 

Chapter III. 

Remedies of Nations as representatives of their citizens 
against other Nations as representatives of their citizens. 

(a) Decision by tribunals of the defendant nation. 

(b) Arbitration by a specially constituted tribunal. 

(c) Arbitration before the Hague Tribunal. 

(d) Decision by international courts. 

Chapter IV. 

Procedure in International Cases. 

(a) Procedure in filing and prosecuting claims before 
departments of national governments. 

(b) Procedure in specially constituted tribunals. 

(c) Procedure in the Hague Tribunal. 

(d) Procedure in international courts. 

Chapter V. 

Execution of International Laws and Judgments, 
(a) By separate or joint national armies or navies acting 
as a delegated constabulary of the society of nations. 

Chapter VI. 

Methods of using Armed Forces, when resistance is made 
to execution of International Laws and Judgments. 
(The laws of war and of neutrality.) 



Proposed Codification 417 

If the society of the nations shall thus recognize itself 
as a federal political society under a customary federal 
law, which rather requires psychological than political 
action, since the society of nations exists when the mass 
of mankind recognize its existence, we may conclude, 
as it would seem, that the proposed international court 
of arbitral justice is necessary and desirable, and that 
codification of international law, that is, authoritative 
codification, is not necessary and probably not desirable. 

The international court of arbitral justice would be 
the court of last resort in all cases arising under in- 
ternational law involving rights of the citizens of the 
nations, and might be given original and even exclusive 
jurisdiction of cases arising between nations where each 
sues in its own right and not as representative of its citi- 
zens. In some cases it might be proper that the de- 
fendant nation should reserve the right to decline to 
appear. Such right to decline to appear in the Su- 
preme Court of the United States is reserved to the 
States of the American Union when they are sued by 
citizens of other States. 

Codification of international law, always understand- 
ing by codification authoritative codification, seems 
necessarily to imply a temporary or a permanent legis- 
lature of the society of nations. A temporary legis- 
lature which should convert the customary law of the 
society of nations into statutory law and then disap- 
pear would leave behind an unchangeable law, which is 
always an obstacle to reasonable and rightful evolution. 
A good rule to-day may, in the course of evolution, 
become later on a bad rule. A permanent legislature 
of the society of nations would necessarily be on the 
representative basis. The representative system has 
never yet been sucessfully applied except in a homo- 
geneous civilized community on a territorial unity. 

21 



41 8 The American Philosophy of Government 

Communities which are separated from each other, or 
which, though contiguous, are psychologically diverse, 
have never yet been successfully held together by a 
representative legislature, and it seems probable they 
never will. For the separated and diverse nations, a 
common supreme customary law, federal in its nature, 
formulated from time to time on ethical principles by 
all the existing agencies of diplomative settlement and 
international conference and by the proposed supreme 
international court, confirmed by the consensus of the 
nations, and enforced by the nations, seems likely to be 
the most efficient bond of union. 



THE LAW OF NATIONS 



419 



THE LAW OF NATIONS 

Printed, with permission, from the original manuscript of an article 
which appeared in a French translation in the May- June, 19 12, number 
of the Revue Generate de Droit International Public, pp. 309-318. Ameri- 
can Journal of International Law, October, 1912. 

AFTER the Reformation, when Europe divided 
itself into a number of separate states, each 
claiming to be an independent nation, the 
necessary contacts between them led to frequent wars. 
The question arose how to bring about a concert of 
action between them, which should result in peace and 
order. All that could be done by agreement was done. 
But it was clear that peace and order were constantly 
imperilled so long as the settlement of the questions 
constantly arising out of these necessary contacts was 
dependent upon treaties, because at any time on slight 
pretext these might be rescinded. It was perceived 
that the only assurance of peace and order among 
nations, as among individuals, lay in the establishment 
of a law governing the actions and relations of the 
nations. Publicists therefore set themselves to the task 
of formulating and establishing such a law. 

In laying the foundations, they naturally looked to 
the great political concepts of their past and present. 
First, there was the original Roman Empire, which had 
expressed itself through the civil law. The political 
principle of that empire was that, though all power was 
theoretically vested in all the people of the empire 
regarded as a single political society, the whole society 
had delegated all its power to the Emperor, who, 

421 



422 The American Philosophy of Government 

through organs selected theoretically by himself, im- 
posed law, as a supreme political personality represent- 
ing the whole empire, upon all the persons and bodies 
politic and corporate within the empire. Second, there 
was the Christian society of the early Church which 
based itself upon the teaching of Christ and the Apos- 
tles, and which was in part theocratic and in part 
democratic and republican. This society included all 
professing Christians regardless of the political juris- 
diction in which each found himself; it exercised no 
political control over its members, but only a spiritual 
oversight of them. Third, there was the Holy Roman 
Empire, which expressed itself in part through political 
compacts between the component states, and in part 
through the canon law. Its principle was that the 
various great communities of Continental Europe, as 
independent states, had delegated power for the com- 
mon purposes to the Emperor and Diet, subject to a 
moral or quasi-legal control by the Papacy for the pro- 
tection of the individual as a member of the Church; 
the Emperor and Diet, and the Papacy, thus consti- 
tuting a dual federal head, for the common political 
purposes and for establishing uniformity in religious 
practice, of a federation composed of the states of Con- 
tinental Europe — the British Islands remaining outside 
the federation and the states of Northern Europe 
participating in it in a half-hearted manner. To these 
conceptions of an organized society regardless of or 
inclusive of states and superior to states and persons 
for all or some purposes, was opposed the conception, 
which became prevalent after the Treaty of Westphalia, 
of the civilized world as composed of a body of states 
wholly independent and only morally bound by such 
agreements as they might choose to make, for such time 
as they might choose to keep them; or at least so far 



The Law of Nations 423 

independent as to be subject in their external relations 
to no law except that of natural reason and justice, 
each one interpreting this natural reason and justice 
according to its own ideas. 

Out of these various conceptions, the publicists of 
the Reformation evolved what they called the law of 
nations, based in part upon the jus gentium of the 
original Roman Empire, in part upon the federal law 
of the Holy Roman Empire, and in part upon history 
and precedent; and what they called "the law of 
nature," based in part upon the lex naturae of the 
lawyers of the original Roman Empire, — which was 
based on reason and conscience, — and in part upon 
the moral and political philosophy of Christ and the 
Apostles. 

The weakness of the argument of the publicists of the 
Reformation lay in the fact that they were unable to 
point out any inclusive organized society or any other 
personality as the law-giver for the nations. The 
Reformation was partly political and partly religious. 
As a political movement, it had for its object the de- 
thronement of the Emperor and the Pope as the dual 
government of a political society which included most 
of the civilized world. Upon their dethronement, this 
inclusive society disintegrated. The old system was so 
unpopular that no attempt was made to reorganize the 
society of the European states under a new and better 
form of government. The world had not advanced to a 
point where this was possible. The only conception of a 
society inclusive of and superior to the nations which 
remained after the Reformation was that which Christ 
had announced. But this was spiritual, not political; 
and it was universal, not European. Though the Chris- 
tian philosophy thus kept alive the idea of an all-in- 
clusive society as the law-giver of the nations, it afforded 



424 The American Philosophy of Government 

no basis for a practical realization of such a society as 
a political fact. 

Because the publicists of the Reformation were thus 
unable to point to a law-giving personality for the 
nations, they failed to show the existence of a law 
governing the nations. They and their successors, 
however, succeeded in convincing the world that such 
a law ought to exist and that it was practicable to for- 
mulate it. Nations began in fact to abide by and 
enforce some of the principles formulated by the pub- 
licists, but each nation continued to insist that it was 
its own law-giver. There were thus certain points of 
agreement between the nations which had some out- 
ward semblance to laws governing the nations. In 
1780 Jeremy Bentham invented the expression "in- 
ternational law," which so nearly expressed the exist- 
ing fact that it was soon seized upon by politicians and 
publicists and came into general, though not universal, 
use. (This expression was used in his essay on The 
Principles of Morals and Education.) 

As we are now able to see, the term "international 
law" is self -contradictory and therefore unscientific. 
That which is international cannot be law; or, what is 
the same thing, that which is law cannot be inter- 
national. Agreements, relationships, commerce may 
exist between nations and thus be international; but 
law can never so exist. Law always and inevitably 
comes from above. Morality may come from above 
or from within. Agreements are related to law only 
as one of the means of establishing law. An agreement 
permanently to observe a rule in a specified set of 
circumstances establishes the rule as a law between the 
agreeing parties ; but the rule is the law, not the agree- 
ment; and if the principle agreed upon be a true prin- 
ciple of justice, the agreement establishing the rule is 



The Law of Nations 425 

justly irrevocable, and is functus officio as soon as made. 
The only adjective which can appropriately be used with 
"law" to express the idea of a law governing the na- 
tions is therefore "supranational" or "supernational." 
In an article on "The Primary Sources of International 
Obligations" printed in the Preceedings of the Fifth 
Annual Meeting of the American Society of International 
Law, held at Washington, D. C, April 27-2Q, iqii, pp. 
280-289, Professor William L. Hull suggested a distinc- 
tion between "the law of nations, or extranational law; 
the law between nations, or international law; and the 
law over nations, or supranational law." Extranational 
law he denned as ' ' a composite photograph [or] an amal- 
gamation of national interpretations of international 
law"; international law as "a collection of the rules 
in force between pairs or groups of nations"; and su- 
pranational law as "a body of law so universal in scope, 
so expressive of the genius of the family of nations as a 
whole, that it may serve as a basis for a genuine inter- 
national court of justice." The terms "extranational 
law" and "international law," as denned by Professor 
Hull, seem to the author to be correct, since "law," 
in the sense in which that word is used in the science 
of jurisprudence, always comes from "above" persons 
or nations — not merely from "outside" of them, and 
not at all from "between" them. "Supranational 
law," as thus defined by him, seems to the author to be 
indefinite. "Supranational law" (or " supernational 
law,"), in the sense in which the expression is used by 
the author, is "the federal law of the society of nations" 
regarding which, see an article by the author, in the 
same volume with that of Professor Hull, pp. 320-337, 
entitled "The Proposed Codification of International 
Law and the Relation of Codification to the Proposed 
Establishment of a Supreme International Court of 



426 The American Philosophy of Government 

Arbitral Justice." Professor Hull interprets his defi- 
nition of "supranational law" in this sense. He re- 
gards supranational law as the law of ' ' the Family of 
Nations," and draws an analogy between this law and 
"the law which was brought into existence [in 1789] 
for that new entity termed 'The United States of 
America.'" See his article, p. 281. Whether the 
law governing nations be established by agreement 
or by force, it comes from above, and there exists a 
human law-giver. Who or what is this human law- 
giver as respects the nations? In the light of recent 
study of the science of jurisprudence, this question may, 
it would seem, easily be answered. 

It is now agreed that law, in the sense of the science 
of jurisprudence, emanates from a political society, and 
is imposed by that society upon the members. Law, in 
this sense — which is the sense we are considering — is 
a body of rules imposed by a society upon its members. 
Until quite recently scholars have fallen into the error 
of confusing the organs of the society with the society 
itself — the agent with the principal. Because the par- 
liament, the congress, the emperor, the king, the presi- 
dent, the courts, the subordinate officials, the shifting 
majority of electors or voters, actually do the work of 
governing, we regard them as law-givers ; whereas they 
are merely the organs of the society, and the whole 
society, of which they are organs and agents, is the real 
law-giver. 

Thus when two or more nations agree to apply a cer- 
tain principle in a specified class of cases, they together 
constitute for this purpose a single society, of which they 
act as organs, and the principle established becomes a 
law of the society and is enforced by the society. 

All law governing nations therefore is imposed upon 
the separate nations by a society of peoples and nations 



The Law of Nations 427 

which may include all or a part of them, and which is 
above and superior to each of them. 

This idea of a political society composed of all the 
peoples and nations, which is a law-giver for the nations, 
is but an enlargement of conceptions which are common 
among us. Great states and empires exist which are 
composed of states, and in which the whole society acts 
as a law-giver for the component units to the extent 
necessary in the common interests. The United States 
and the British Empire are examples of such societies. 
The latter includes nations of every variety of race, 
civilization and creed. The expression "the society of 
nations," as a term signifying the political society com- 
posed of all the peoples and nations, or of all the civi- 
lized peoples and nations, is coming into common use. 
Professor Westlake asserts that what is usually called 
international law is the law of the society of nations. 
{International Law, by John Westlake, Part I, Peace, 
ed. 19 10, p. 1.) It is, we venture to assert, not going 
beyond the fact to say that at the present moment, the 
nations and peoples of the world are, by agreements, 
by commerce, by relationships, indissolubly and fed- 
erally united, so that they together constitute a body 
politic and corporate, which is the law-giving personal- 
ity above the nations. 

But this will no doubt be at first denied, and it will 
be urged that the society of nations is only an imaginary 
body politic and corporate. Before it can become a 
fact, it will be said, it must be created as an institution 
among men, its functions must be defined and it must 
be provided with suitable officials and organs by which 
to express itself. 

As respects the first objection, it may be answered 
that a corporation need not be created by express 
action of the state or of the persons or political units 



428 The American Philosophy of Government 

composing it, and that a body politic or corporate may 
exist by being recognized as a corporation by a given 
state or by society at large. In the same manner, 
an inclusive political society having states and their 
peoples as its component units need not necessarily arise 
by the process of creation or through express agreement 
of the component units, but may exist through their 
recognition of themselves as forming such an inclusive 
society. The truth seems to be that the society of 
nations exists by the recognition of the nations and of 
the people of the nations — that is by the recognition 
of society at large. 

As respects the second objection, the powers of the 
society of nations regarded as a political corporation 
are defined by the circumstances of the case and by the 
needs of the situation. There is no need for the nations 
to submit themselves to any law-giving personality as 
respects their strictly internal and domestic affairs. 
Experience has shown that civilization is advanced by 
the nations exercising all functions in this respect. The 
only need, in the interests of civilization, is, that there 
should exist a law-giving personality as respects those 
matters which are common to all or which are beyond 
the competency of any one. The powers of the society 
of nations as a law-giver for the nations are therefore 
limited by the necessity and propriety in the case, to 
those which are needful in order that those matters 
which are common to all may be disposed and regulated 
according to a common plan for the benefit of all, and 
in order that those matters may be adjusted which 
concern more than one and less than all the nations, 
and which are therefore beyond the competency of any 
one of them to decide. In a word, the society of nations 
is by the nature of the case a federal body politic and 
corporate, and its central government, if one can be 



The Law of Nations 429 

said to exist, is a federal government as respects the 
nations, and exercises the usual powers of such a 
government. 

In reply to the third objection, that there are no 
officials or organs of the federal government of the soci- 
ety of nations, it may be said that if this were true, it 
would not be fatal. A corporation may exist without 
officers, and a body politic may exist without a govern- 
ment or under a provisional government. When there 
is no designated governing body, the powers of the cor- 
poration or nation revert to the whole membership of 
the corporation or nation, who may designate their 
officials and divide among them the powers of the cor- 
poration. The designation of a governing body is thus 
wholly a matter of convenience. If it be more conveni- 
ent under any given circumstances for a corporation or 
a body politic to manage its affairs otherwise than 
through a governing body specially designated, or 
through a provisional government pending the estab- 
lishment of a permanent government, it is competent 
for it so to do. 

It appears to be the case that it is more convenient 
under present circumstances that the federal govern- 
ment of the society of nations should not be placed in 
charge of a specially designated and authorized governing 
body and that the federal powers should be exercised 
by or under the supervision of the nations themselves 
as the ultimate federal government, in such manner 
that the rights of the minority may be respected. As 
has been said, when certain of the nations through 
treaties or conventions, agree to establish a rule be- 
tween them based on principles of justice, they are act- 
ing as the organs and officials of the society of nations 
and as its federal government to a certain extent, and 
are respecting the rights of the minority by not enforc- 



430 The American Philosophy of Government 

ing the rule except between the agreeing nations. A 
specially designated and authorized governing body 
could hardly be based on any other than the representa- 
tive principle, and whether the basis of representation 
were wealth or population, or both, the majority of 
the representatives would necessarily rule. Experience 
has proved that the representative principle is applic- 
able only among homogeneous populations of high 
civilization inhabiting a territory all parts of which are 
contiguous. Nations and peoples which though homo- 
geneous are of low civilization, or which are hetero- 
geneous in race or creed, or which are of varying 
degrees of civilization, or which inhabit regions separate 
from each other, must affect their common ends and 
must adjust those disputes in which more than one 
and less than all are concerned, through some species 
of government, — informal or even formless almost 
though it may be, — whereby the local circumstances 
of each may receive due consideration and whereby 
the danger of a majority which is in fact a political 
coalition seeking control and aggrandizement may be 
averted. The society of nations, regarded as a political 
society, is composed of heterogeneous and separated 
nations and peoples, and its government must therefore 
be so constituted and carried on that all danger of 
majority rule may be avoided and opportunity be 
given for each nation or any minority of the nations to 
take such measures and abide by such rules as it or 
they may deem necessary for self -protection and self- 
preservation and for the common welfare of all. Such 
a federal government of the society of nations does, 
we venture to assert, exist. 

Before attempting, however, to describe this govern- 
ment, it will be desirable to notice, first, that the society 
of nations, regarded as a federal body politic, is of what 



The Law of Nations 431 

may be called the mixed form. The study of the science 
of government has shown that there are two general 
classes of federal bodies politic — one in which the com- 
ponent states or the whole people designate individuals 
who collectively constitute the federal government, and 
the other in which one of the states or a group of them 
constitute the federal government or control the desig- 
nation of the individuals who constitute such govern- 
ment. The society of nations appears to partake some- 
what of the nature of each of these forms. Such 
gatherings as the Hague Conferences have some re- 
semblances to a federal government on representative 
principles, though such conferences are only advisory; 
yet as matter of fact, the supernational law of the 
world is made principally through the persuasive 
hegemony of the group of nations which we call "the 
great Powers." 

It will be desirable, also, to bear in mind that, as the 
result of recent study of jurisprudence, it has been 
shown that all government, whether the form of the 
body politic be unitary or federal, involves the perform- 
ance of two and only two functions — the formulation 
of laws and the enforcement of them. Law, in the sense 
of the science of jurisprudence, as has been said, ema- 
nates from a political society, and is imposed by the 
society upon its members : but law does not exist until 
it is formulated by the society and it is in a state of 
suspended animation unless it is enforced in the cases 
to which it is applicable. 

Lastly, it will be necessary to remind ourselves that 
though we may think and speak of nations or other 
corporations as forming a government of an inclusive 
society, just as we may think and speak of a corpora- 
tion composed of corporations, nations and corporations 
are, after all, bodies of persons, and our enquiry resolves 



432 The American Philosophy of Government 

itself in the last analysis into a search for the persons 
who formulate and enforce the law of the nation or 
corporation which we are considering. 

Who, then, are the persons who, in behalf of the soci- 
ety of nations and as its federal government, formulate 
and enforce the federal law of the society, which we call 
international law, but which we should, it would seem, 
call the supernational law? Those who formulate the 
law are clearly the publicists, the members of embassies 
and legations, the members of the foreign departments, 
the members of councils and senates who pass upon the 
ratification of treaties, and the members of the national 
legislatures who, in the last resort, pass upon great con- 
ventions between the nations and determine the foreign 
policy of each nation. These officials act, we may 
believe, as a general rule, not merely in the interests 
of their own nations, but in the interests of the peace 
and order of the world. The law-enforcing officers of 
the society of nations we find among the executives of 
the nations acting both in their civil and in their mil- 
itary capacity. Rarely can there be found a national 
executive who does not, when attempting to wield the 
power of his nation against other nations, consider the 
interests of the rest of the world as well as those of his 
own nation, or at least attempt to do so. The military 
and naval officers of to-day, familiar with the whole 
world, seek to make their national flags emblems of 
civilization, and to use the engines of destruction only 
that obstacles to progress and illumination may be 
removed : and victorious soldiers are often sympathetic 
teachers and guides of the vanquished. When civilized 
nations seek to impose their judgments upon countries 
external to them, they more and more tend to justify 
their action, in the eyes of the nations; attempting 
to show, by reason and argument, that the action in 



The Law of Nations 433 

question is necessitated in the interests of the common 
welfare as well as in their own interests. 

But it may be said that all this is fanciful, — that the 
case for supernational law has not been made out — 
that it is well not to change an old expression like « 'inter- 
national law" which has served a good purpose, self- 
contradictory though this term may be — that the com- 
promise which was good enough for our fathers ought 
to be good enough for us. 

But all compromises regarding matters which are of 
constant occurrence are in the nature of things tem- 
porary. By the process of evolution a point is certain 
ultimately to be reached where a definite decision of 
the question has to be made. That point has, it would 
seem, been reached as respects the law governing the 
nations. The common juridical sentiment — to use the 
expression of Rivier — has now evolved to the point 
where it is no longer satisfied with a law purporting to 
govern the nations which in the last analysis is no law 
at all but merely an agreement between certain of them. 
The meaning of law is now clearly understood, and it 
is also understood that there is no reason why nations, 
like other persons and corporations, should not be 
subject to law. There is no desire that the nations 
should yield their rights of self-preservation or self- 
protection. As respects the language in which super- 
national law shall be formulated and as respects the 
manner of its enforcement, the nations are regarded by 
the common juridical sentiment as the safest judges. 
But there is a growing insistence that there shall be a 
true supernational law, to the extent that such a law is 
possible consistently with national self-preservation 
and self -protection. Judicial, not political, settlement 
of international disputes is earnestly advocated by the 
leading statesmen of the world, in so far as such settle- 
28 



434 The American Philosophy of Government 

ment is possible without destroying the nations. The 
demand for a supreme court of the society of nations 
to supplement the present international arbitral tri- 
bunal, leaving to the arbitral tribunal the function of 
settling questions which are of a nature to be settled 
by political compromise rather than by judicial decision, 
becomes more and more pressing. 

It seems, therefore, that the time has come when 
supernational law must supplant that which is called 
' 'international law." Out of regard for the national 
rights of self-preservation and self -protect ion, we must 
proceed cautiously in working out details, and objec- 
tions of nations to submit their disputes under a law 
admittedly supernational should be viewed leniently; 
for a supernational law will destroy itself if it destroys 
the nations. As a true supernational law must protect 
and preserve the nations as well as regulate them in the 
common interests, it is consistent with such a law that 
the nations should decline to submit to judicial settle- 
ment any questions, which, if decided adversely to them, 
would result in their destruction. Indeed, when the 
supernational law is finally formulated, it must of 
necessity, as it will in fact be the federal law of the 
society of nations, itself exclude from judicial considera- 
tion questions which involve the self -protection or self- 
preservation of any nation. But even when such ques- 
tions are excluded, the scope of supernational law is 
wide. 

The acceptance of "the federation of the world" as 
an existing fact does not necessarily involve a belief 
in the ultimate evolution of a "parliament of man." 
Formulation of laws by parliaments involves the rule 
of the majority. Majority rule is just only when the 
members of the minority have equal opportunity with 
the members of the majority to convert a minority into 



The Law of Nations 435 

a majority. When the majority is fixed and certain, 
majority rule is permanent domination of the minority 
by the majority. Moreover, majority rule is just only 
when each representative understands the local con- 
ditions and circumstances of all the communities rep- 
resented. Ignorance of the majority may result in its 
permanent imposition of unjust rules upon the minority. 
In the society of nations there is always danger that a 
majority may, through ignorance of local conditions, 
impose unjust laws upon a minority. Those who accept 
the idea that the society of nations is an existing fact 
and that it is the law-giver of a law which governs the 
nations and regulates them in their common purposes, 
are in reason forced to believe only that the existing 
federal government of the society of nations will con- 
tinue to evolve along its present lines. They will not 
seek to abolish the present federal government and to 
establish in place of it a "parliament of man," but will 
endeavor by investigation and study to invent improve- 
ments in the existing federal government, so that it 
may more and more perfectly formulate and enforce 
the supernational law, while preserving all the nations 
and protecting the minority of them from being per- 
manently dominated or ignorantly imposed upon by 
the majority. 



INTERNATIONAL LAW AND POLITICAL 
SCIENCE 



437 



INTERNATIONAL LAW AND POLITICAL 
SCIENCE 

Reprinted from "The American Journal of International Law," April, 

1913. 

IT is a truism that the science of law proper — the 
science dealing with the national law of each nation 
— is very different from the science of what is 
called international law. In the study of the law of 
the United States or the law of Great Britain, one finds 
the whole science based on the fact of the existence 
of a political society known as the United States or 
Great Britain, which formulates, applies, and enforces 
the law which governs these nations in their internal 
relations. When one enters upon the study of what is 
called international law, one finds himself expected to 
accept as a fundamental proposition that there is no 
political society which formulates, applies and enforces 
the law which he is told governs all nations in their 
external relations, and that this law is formulated, ap- 
plied and enforced among or between the nations. This 
difference in fundamentals leads to corresponding dif- 
ferences in the derivative notions. Practitioners of law 
proper take little or no interest in what is called inter- 
national law. From their point of view, that which is 
called international law is only a collection of the rules 
of a highly interesting game, success in which depends 
largely upon "face" and personality; nor can it be 
denied that there is much to justify this opinion. Stu- 
dents of law reflect the attitude of mind of the practi- 

439 



440 The American Philosophy of Government 

tioner, and the great majority of students end then- 
legal education when they finish the courses in national 
domestic law, giving no consideration to the law which 
governs the actions and relations of the nations. 

In recent years, the development of what is known 
as political science, which is the science dealing with 
the structure and working of political societies, has ac- 
centuated the difficulties of students who wish to gain 
some knowledge of the political and legal affairs of the 
world. They study the structure and working of the 
town, the country, the state, and the nation for the 
purpose of making these political societies more eco- 
nomical and efficient. They even go beyond the con- 
fines of the nation and study the structure and working 
of vast political organisms like the British Empire for 
the same purpose. But when they seek to apply politi- 
cal science to the structure and working of the whole 
human society, they are confronted by a prevalent 
idea that beyond the limits of nations, or at least be- 
yond the limits of political organisms like the British 
Empire, there is political chaos. They are taught that 
the nations are sovereign and independent, but that 
all the nations have the mutual attribute of solidarity. 
If the word solidarity is given its technical meaning, 
it seems not to imply a complete or a federal unity, but 
rather a mutual relationship of the persons or societies 
concerned under an implied contract of each with each, 
and with all, whereby all are the mutual guarantors 
of each other. In this technical sense, solidarity of the 
nations, seems, when analyzed, to imply a universal 
extension of the balance of power system, which for 
four centuries has drenched Europe with blood. If the 
nations are mutually guarantors of each other, it neces- 
sarily follows that if one nation becomes expansive or 
aggressive, "international solidarity" compels its sur- 



Political Science 441 

rounding neighbors to ally themselves so as to balance 
or overbalance the power of the aggressor nation, for 
the purpose of holding it in check. This is exactly 
the balance of power system. It leads to shifting 
alliances, ententes and concerts. The system in opera- 
tion is essentially a military game, requiring the appli- 
cation of rules of strategy. It is the antithesis of po- 
litical organization, and though it may ultimately lead 
to political organization through the exhaustion of the 
parties and their perception of the waste and ineffi- 
ciency involved, it frequently involves a military 
dictatorship as an intermediate process. 

But the march of events is modifying this technical 
meaning of solidarity, and the word is coming into 
popular use in a new and enlarged sense as implying 
an existing unity, federal in type, of the whole body 
of the peoples and nations of the world. This enlarged 
meaning of solidarity is apparently due to the effort 
of the public mind to find a word to express the altered 
views which people everywhere are beginning to have 
concerning human society as a whole. Educated and 
uneducated persons alike, familiarized by the public 
press with the doings of all the peoples and nations of 
the world through the processes of modern invention, 
now understand that the world is made up of political 
societies much resembling those to which they are 
accustomed. It is becoming more and more impossible 
to induce the average man to believe that his nation is 
related to other nations after the manner of savages or 
half -civilized persons. It is becoming increasingly easy 
for him to realize that all the peoples, countries, states, 
nations, and empires of the world are in fact, by the 
necessity of the case and by their own consent, united 
into one great political organism and society. It has 
become necessary to give this inclusive society a name, 



442 The American Philosophy of Government 

and the name of "the society of nations" is rapidly 
becoming attached to it — not because the name is 
scientific and strictly accurate, but because it is brief 
and expresses fairly well the idea intended. 

The fact seems to be that, in this last decade, there 
has occurred what may be termed in some sense a 
peaceful revolution and in some sense a renaissance. 
There has been during this period a change of thought 
away from the accepted philosophy and a taking up 
with a new philosophy of a higher type. For a political 
economy which regarded human happiness as based on 
production and distribution of commodities, and made 
credit — the inviolableness of contracts — the prime req- 
uisite, there is being everywhere established a political 
philosophy which is based on the moral worth and dig- 
nity of the individual, and insists that contracts and 
relationships inconsistent with this dignity are not of 
binding force. All contracts and relationships are sub- 
jected to this test of invalidity, and, as all social and 
political organization is in its last analysis only a system 
of individual contracts and relationships, all such or- 
ganization is being subjected to the same test. Thus, 
all forms of social and political organization which are 
inconsistent with the moral worth and dignity of the 
individual are coming to be regarded as void, and 
governments are considered to be just, economical, and 
efficient, not according as they protect the production 
and distribution of commodities, but according as they 
recognize, protect, and preserve the moral worth and 
dignity of each and all individuals. Political organiza- 
tion is thus regarded as an inseparable incident of 
human life and as an attribute of the individual. In 
other words, we are changing to a philosophy which 
treats political organization and government as in part 
an attribute and in part a creation of man. Where two 



Political Science 443 

human beings exist together, contracts, and relation- 
ships exist between them and they form a community, 
in spite of themselves, which is a political organization 
and a government. Political organization and govern- 
ment are, in this new philosophy, regarded as neces- 
sities which the individual must have whether he will 
or not, just as he must breathe air or drink water. He 
may take government in a crude and harmful form just 
as he may breathe bad air, or drink polluted water; 
but he cannot avoid being in contractual or actual 
relationship with other human beings and hence form- 
ing a political organization with them any more than 
he can avoid breathing or drinking. All he can do is to 
see to it that he gets pure government, pure air, and 
pure water. 

This new philosophy, as has been said, is gradually 
making its way, tempering the harshness of the old trade 
and credit economy. That philosophy had resulted in 
the sacrifice of human life and dignity to the production 
and distribution of goods, in the inviolability of contracts 
even though they called for the sacrifice of life and dignity, 
and in free competition whereby the strongest might 
overcome the others and establish any relationships 
with the vanquished even to the destruction of life 
and dignity. The new philosophy is altering the out- 
look of the individual upon all kinds of social, economic, 
and political organization. Each individual recognizes 
all kinds of organization as a possible means of extend- 
ing his own powers, though capable of being perverted 
so as to injure or destroy him. He is beginning to 
understand that organization exists and that all he can 
do is to change it; and as he seeks for a limit to the 
extension of organization, his mind refuses to stop short 
of the whole human society. As each human being is 
born a citizen of his city, a citizen of his state, or a 



444 The American Philosophy of Government 

citizen of his nation, so also, it is being realized, he is 
born a citizen of that great inclusive society composed 
of all the peoples and nations of the world. He may 
change his citizenship in the city, the state, or the 
nation ; but his citizenship in this great inclusive society 
which, for want of a better name, we call "the society 
of nations" is permanent and unchangeable. He cannot 
escape this citizenship; he can only improve the or- 
ganization so as to make it more consistent with the 
moral worth and dignity of himself and all other human 
beings. Nor can the whole body of the peoples of the 
world by any action prevent the society of nations from 
existing. They cannot even ignore it, for once it is 
recognized, it becomes the only permanent human 
institution, and an object of the solicitous care of the 
peoples and nations ; for through the society of nations, 
the nations as well as the individual realize the fullest 
extension of their powers. 

It requires but a moment's reflection on the part of 
an intelligent person to perceive that if the common 
sense and judgment of the world accept the society 
of nations as a part of present day practical politics, 
it can be made a subject of study by political science 
exactly in the same way as a town, a city, a state, a 
nation or an empire. In this view, the law which 
governs the nations is the law which is imposed on the 
nations by the society of nations. The nations obey 
this law not because they wish to do so, or 
because they agree to do so, or because they re- 
gard it as a matter of honor to do so, but because 
the peoples and nations of the world recognize them- 
selves as together forming a political society which is 
greater than any nation and which includes all nations, 
and have delegated to that society the function of 
formulating, applying and enforcing a constitution and 



Political Science 445 

law for the common and general purposes of all the 
nations. The constitution and law so formulated by 
this political society by virtue of its delegated power, 
bind the separate nations and their peoples in the same 
way that the constitution and law of the United States 
bind the States of the United States and their peoples. 
That which is called international law is thus seen to 
be the law of the society of nations, or, to use the briefer 
and more popular expression, the law of nations. 

It is true, there are difficulties in the way of the 
acceptance of these modern notions. In the society 
of nations there is nothing to be found exactly resem- 
bling a constitutional convention, a legislature, an 
executive or a court, as we know these institutions in 
our national life. Nevertheless, in the society of nations 
one may distinguish and identify crude institutions of a 
constitution-making, legislative, executive and judicial 
character and may discover crude constitution-making, 
legislative, executive and judicial processes going on 
by which the constitution and law of the society of 
nations are gradually being formulated, and by which 
those constitutional and legislative provisions which 
have been formulated are being interpreted, applied 
and enforced. 

When the society of nations is further studied accord- 
ing to the methods and principles of political science, 
it will be found that, although it is in the primitive 
stages of organization, it even now bears a general 
resemblance to a federal state. The central govern- 
ment at the present time will be found to be deposited 
in commission, and the commission is of so indefinite 
and changeable a character as to be hardly recognizable. 
The Hague Conferences and the Hague Tribunals have 
tended to visualize the central government of the society 
of nations, but these institutions are, after all, but a 



446 The American Philosophy of Government 

fractional part of the institutions which even at the 
present moment constitute the central government. 
The indefiniteness concerning the location of the 
central government and concerning the nature 
and extent of its powers leads to a corresponding 
indefiniteness respecting the residual powers of the 
various nations. The nations, on account of these 
deficiencies in the central government, are obliged 
to act in a double capacity, and at times not only to 
perform their own domestic functions, but to exercise 
the functions of the central government. Thus, 
though the principles of federal government are to be 
taken as a general guide in studying the structure and 
working of the society of nations as a matter of political 
science, and in studying the law of the society, these 
principles are subject to many qualifications and 
variations, due to the present indefiniteness of the 
organization of that society. 

For the purpose of showing how the acceptance of 
the society of nations as a fact of practical politics alters 
the fundamental principles of the law which governs 
the nations, it will be attempted to state these princi- 
ples. Such a statement might be as follows : 

i. The society of nations is a political society com- 
posed of all the peoples, countries, states, nations and 
empires of the world. It exists by its own recognition 
of its existence, having no human superior. It is per- 
manently instituted by the necessity of the case and 
by the common consent of all the peoples, countries, 
states, nations and empires as their supreme organ for 
formulating, applying and enforcing their conscience 
and will as respects the general measures necessary 
for their common protection and welfare, and for the 
preservation of the component nations and political 
societies without change except as may be needful 



Political Science 447 

for the common good. The society of nations estab- 
lishes and maintains such constitution-making, legis- 
lative, executive and judicial institutions and processes, 
as are considered by the people and nations of the 
society to be best adapted for these purposes respec- 
tively. 

2. The law of the society of nations is the body of 
rules, duly formulated, applied and enforced by the 
society of nations through appropriate institutions 
and processes, regulating the actions and relations 
of the nations and their citizens. This law extends 
only to the common and general purposes of the nations 
and the whole society, and resembles the federal law 
in a federal state. 

3. The law of the society of nations (like the law 
of all states, particularly the law of federal states) is 
divided into three grades — the organic (or constitu- 
tional) law, the statutory law, and the customary 
(or common) law. The organic law is superior to both 
the statutory and the customary law. The statutory 
law is superior to the customary law. The organic 
(or constitutional) law is composed of those principles 
which are so fundamental and permanent as to be 
indispensable to the structure and organic existence 
of the society. The statutory law is composed of those 
principles, consistent with, dependent upon and in 
support of the organic law, which are formulated and 
established by legislative institutions and methods. 
The customary (or common) law is composed of those 
principles, consistent with, dependent upon and in 
support of the organic and statutory law, which are 
formulated and declared by courts or judicial tribunals 
in cases arising before them, based on common and 
accepted custom of the peoples and nations of the 
society. 



448 The American Philosophy of Government 

4. The present organization of the society of nations 
being indefinite, the ultimate constitution-making, 
legislative, executive and judicial power of the society 
is for the present vested in the nations, acting col- 
lectively or separately as the organs of the society. 
The highly civilized and well-armed nations take the 
lead in formulating, applying and enforcing the con- 
stitution and law of the society, partly by the general 
consent, and partly by the necessity of the case; but 
all the nations are at liberty to formulate, apply and 
enforce, individually or by agreement, such principles 
as they may consider it probable the society of nations 
would formulate, apply and enforce in the circum- 
stances. The use of armed forces by separate nations 
to establish justice and maintain order, in execution 
of the constitution and law of the society of nations, 
is justifiable, and is not to be regarded as war, but as 
constabulary action in the name of the executive power 
of the society of nations. 

5. Nations, states, or countries, may form any sort 
of relations or make any contracts with each other 
which are not self-destructive as respects either party 
or destructive as respects third parties, and which 
are not opposed to the constitutional dispositions of 
jurisdiction accepted by the society of nations, or to 
the limitations imposed upon the nations by the con- 
stitution of the society. When a relationship is thus 
established, or a contract is thus made, the same 
principles apply in interpreting the relation or contract 
as are applied in interpreting similar relationships or 
contracts between individuals or corporations, or 
between the states of a federal union; but these prin- 
ciples are to be applied only by way of analogy. 

6. All differences between nations with respect to 
which there exists a duly formulated and settled prin- 



Political Science 449 

ciple of the organic law of the society of nations and 
also a duly formulated statutory principle or an estab- 
lished custom consistent with such organic principles, 
or with respect to which the parties are able to agree 
upon principles which are to be regarded as principles 
of the law of the society of nations for the purposes 
of the case, if not settled by agreement, may be settled 
by arbitration or by the decision of a court of the society 
of nations. Where there are no such principles, and 
the parties are unable to agree upon such principles 
for the purposes of the case, other nations may mediate 
for the purpose of finding a way to settle the difference, 
or the matter may be postponed to await the formula- 
tion and establishment of the applicable principles 
by a conference of all the nations or of all the nations 
interested; and it is the duty of all nations to urge 
such postponement, and to cooperate for the formula- 
tion and establishment of such principles. When 
such postponement is impossible, armed force applied 
by one nation against another to compel it to recognize 
a principle of the law of the society of nations which 
approves itself to the common juridical conscience 
of the world, is justifiable. 

7. Treaties between nations for the arbitration of 
disputes between them not capable of settlement by 
agreement, or for the submission of such disputes to 
judicial settlement, should exclude all cases which 
involve a principle of the organic law of the society of 
nations which has not been formulated and settled 
by the constitution-making action of the nations, 
since it is not the function of arbitral tribunals or 
courts to formulate and settle the organic law of the 
society of nations. These principles can only be settled 
by the nations directly, either by joint agreement, 
or by the insistence of one or more nations backed by 
29 



450 The American Philosophy of Government 

armed force if necessary, supported by the common 
juridical conscience of the world. In an arbitration 
or judicial settlement of disputes other than those 
last mentioned, under a general arbitration treaty, 
the tribunal or court is to apply the settled principles 
of the organic, the statutory, and the customary law 
of the society of nations in the order of superiority 
as above stated. In interpreting settled principles of 
the organic law of the society of nations, the tribunal 
or court is to be guided by analogy drawn from the 
principles of the constitutional law of states and nations, 
and particularly by analogy drawn from the federal 
constitutional law of federal states. In interpreting 
settled statutory rules of the law of the society of nations 
not inconsistent with the organic law, the tribunal 
or court is to be guided by analogy drawn from the 
rules of the law of states and nations relating to the 
interpretation of statutes, and particularly by analogy 
drawn from the rules relating to the interpretation 
of federal statutes in federal states. In declaring and 
interpreting the customary law of the society of nations 
not inconsistent with the organic and statutory law, 
the tribunal or court is to consider all treaties and all 
national statutes or judicial decisions involving prin- 
ciples applicable to the case, and is to be guided by 
analogy drawn from the statutory and customary 
law of states and nations, and particularly by analogy 
drawn from the federal statutory and common law in 
federal states. Such analogies are not to be pushed 
to the point where national rights of self-protection 
and self-preservation would be endangered by pre- 
mature or excessive admixture of peoples in different 
stages of civilization or of divergent ideas or sentiments, 
or by unregulated economic competition; but all 
reasoning by analogy drawn from state or national 



Political Science 451 

action is to be subject to national rights of self -protec- 
tion and self-preservation, since the existence of the 
nations is fundamental to the existence of the society 
of nations. When disputes arise between nations 
under treaties, the tribunal or court is to consider the 
treaties themselves as subject to the law of the society 
of nations. Treaties found by the court to be repugnant 
to the law of the society of nations are to be held con- 
trary to public policy and void, to the extent that 
they are so repugnant, and the case is to be decided 
according to the law of the society of nations. 

8. The autonomy of all nations is inviolable except 
where the autonomy of a nation is opposed to the 
constitution and law of the society of nations and is 
inconsistent with the peace and welfare of the society. 
An entry by a nation into the territory of another in 
the name of the executive power of the society of 
nations, must be based on an intolerable condition of 
anarchy there prevailing or upon a breach of the law 
of the society of nations by the nation entered, of so 
serious a character as to render restraint or punish- 
ment of the nation necessary, in the interests of the 
society of nations; and the constabulary power thus 
applied must be only carried to the extent necessary 
to effect the necessary reorganization of the nation 
thus policed. If entry by armed force is made without 
due cause by one nation into the territory of another, 
the nation entered has the right to use its armed force 
in self-defense; and the right of self-defense exists 
when, after lawful entry by a nation, it attempts the 
destruction or excessive punishment of the nation 
entered. 

9. An entry by a nation into the territory of another 
nation, made by means of armed force, even though 
lawful as an exercise of the executive power of the 



452 The American Philosophy of Government 

society of nations, gives of itself to the constabulary 
nation no right to territory or property of the nation 
policed; but a transfer of the territory of the nation 
thus policed, or an indemnity, may be awarded to 
the constabulary nation by the concert of the nations 
or by the concert of the interested nations, of such 
extent or amount as may be proper, considering its 
expenditure or loss and all other circumstances. 

It will be noticed that in the above statement of 
the fundamental principles of the law of the society 
of nations, there is a wide departure from the various 
Codes de la Paix with which the pacifist literature 
abounds; in that the application by a nation of armed 
force outside its limits is not considered as in all cases 
unjustifiable and illegal. Such principles are undoubt- 
edly inconsistent with immediate disarmament, but 
they are, it may be confidently asserted, the only 
principles likely to bring about a general condition of 
peace. The recognition of the society of nations as an 
existing fact gives a basis for distinguishing between 
those applications of armed force by nations which 
are and ought to be lawful as exercises of the executive 
power of the society of nations, and those which are and 
ought to be unlawful as acts of robbery or oppression. 
Any application of armed force by a nation against 
another which tends to support at the same time the 
nations and the society of nations is and of right ought 
to be lawful, and armed force directed by a nation 
so as to produce the contrary effect is and ought to 
be unlawful. Being thus able to distinguish between 
constabulary action and war, it remains only to educate 
public sentiment so that more and more the application 
of armed force by the nations shall in fact be constabu- 
lary action in the name of the executive power of the 
society of nations. As the area of constabulary action 



Political Science 453 

increases, the area of war necessarily diminishes. As 
the peoples and nations of the world become more and 
more habituated to the notion of the application of 
armed force by the nations for the constabulary pur- 
poses of the whole society, separate nations will grad- 
ually become anxious to rid themselves of this con- 
stabulary burden and will be ready to unite in forming 
some plan for delegating their constabulary responsi- 
bilities. When this occurs war will be abolished in 
the society of nations by exactly the same process that 
individual fighting and private war have been abolished 
in the separate nations — that is, by political organiza- 
tion. The crude constitution-making, legislative, execu- 
tive and judicial institutions and processes which now 
exist in the society of nations will gradually be improved 
upon and rendered more definite and efficient, and some 
kind of arrangement will ultimately be made which 
will minimize the burden of constabulary action and 
preserve the general peace and order. 

From what has been said, it may, it would seem, be 
concluded that international law in its literal and tech- 
nical sense as law between or among nations is destined 
gradually to pass into the oblivion which awaits out- 
worn sciences and philosophies, both because such a 
law is inherently impossible as a matter of jurisprudence, 
and because it cannot be squared with the principle 
of political science. If the name international law is 
retained, therefore, it must be given an enlarged 
meaning, so that it shall in fact mean the law of the 
society of nations. Such a meaning has already been 
attempted to be attached to it by many writers, and 
from the time of Grotius the society of nations has been 
recognized by publicists in a figurative sense. What 
is now needed is, that publicists should accept the 
society of nations not in a figurative but in a literal 



454 The American Philosophy of Government 

sense, as an existing and permanent fact of practical 
politics — as a political organization having a concrete 
existence just as really as has the United States or as 
has Great Britain. Until recently, the facts of inter- 
national life have made men in practical politics 
hesitate to accept this fact and have compelled them 
to adopt compromise notions. Violent insistence upon 
national sovereignty has required equally violent 
assertions of national sovereignty in return. The 
situation has now changed, and almost without our 
notice the facts of international life have become such 
that the conception of a society of nations and of a law 
of this society has become more reasonable as a working 
basis of action than the conception of the nations as 
wholly sovereign and wholly independent, living under 
agreements with each other which they choose to regard 
as law. 

No doubt for a long time to come there will be few 
principles of the law of the society of nations which 
will be so definitely formulated and established that 
any national court would think of applying them in 
superiority to a treaty or a national law with which 
they should conflict. As international tribunals in- 
crease, however, the question of the effect which should 
be given to principles of the law of nations as con- 
trolling and superseding treaties and national laws 
inconsistent with these principles will become a press- 
ing one. If the Court of Arbitral Justice is established 
at The Hague, it will be essential to its success that the 
principles of the law of the society of nations should, 
within the sphere suitable for that law, control and 
supersede all conflicting treaties and national laws. 
That court already exists in principle by the action of 
the Second Hague Conference. It wants only the 
appointment of the judges. Once established, it will 



Political Science 455 

be a court of the society of nations. If it gives effect 
to all treaties and all national laws which bear on the 
cases brought before it, without ascertaining whether 
or not they conflict with the organic, statutory or 
customary law of the society of nations, it will abdicate 
its high function and become merely a part of the 
diplomatic machinery of the disputing nations. Thus 
in a very concrete sense, the idea that a society of 
nations exists and that it has formulated and is formu- 
lating a federal law which within the sphere of the 
common interests is superior to treaties between the 
nations and superior to the municipal law of each nation, 
is of service at the present time ; for on the acceptance 
of this idea depends the establishment of the Court 
of Arbitral Justice at The Hague. 

But even if we leave out of consideration the pro- 
posed new court at The Hague, and look solely at the 
general benefit to be derived from the prevalence of 
this idea, we may find good reasons for accepting it. 
It is to be noticed that the society of nations has no 
human superior, and that it exists not by any external 
recognition, but by the mental, and psychological 
action of the individuals who compose it. No formal 
federation of the nations is necessary. It is only 
necessary for the peoples and nations of the world to 
recognize themselves as forming one organized political 
society. Each individual and nation is as important 
as any other in exercising the power of recognition, 
and each individual or nation is equally entitled to 
participate in the work of improving the organization 
of the society to which he belongs. Historians have 
noted that the beginning of the real progress of a 
nation occurs when its people realize their existence 
as a nation, and come to understand that the nation in 
the hands of the people can be made one of the greatest 



456 The American Philosophy of Government 

means for extending the power of the individual and 
enabling him to increase his own happiness. Out 
of such a popular conception of the nation and of the 
possibilities of individual good to be derived from an 
economical and efficient national organization, has 
developed the whole system of democratic represen- 
tative and responsible government, whereby each 
person capable of intelligent judgment is enabled to 
participate, in an orderly and appropriate manner, 
in the direction of each political organization of which 
he is a member. On such ideas is based the present 
progressive movement, which is extending throughout 
the world. That movement is, in each nation, a con- 
scious effort of individuals, parties and corporations 
to invent improvements in existing political organiza- 
tion, so that town, city, state and nation may in their 
respective spheres operate more economically and 
efficiently in extending the powers of the individual 
and enabling him to increase his happiness. A similar 
consciousness, shared by all the peoples of the world, 
of the existence of the society of nations as the one 
permanent and all-inclusive nation, and a similar 
appreciation by them of the possibilities of human 
betterment through improvements in the organization 
and working of this great society, must, it would seem, 
necessarily result in broadening the progressive move- 
ment, and lead to a conscious and persistent effort 
of individuals, parties and corporations in all parts of 
the world, directed toward improvements in the organ- 
ization of this great nation, to the end that it, too, may 
be made more efficient in extending the powers of the 
individual and enabling him to increase his happiness. 
As such conscious efforts applied within each nation 
by its citizens have always resulted in a notable increase 
in the prevalence of justice, order and peace among 



Political Science 457 

the individuals forming the nation; so similar efforts 
by citizens of the society of nations may ultimately 
result in a prevalence of justice, order and peace among 
the scattered and diverse peoples and nations which 
together form the society of nations, in some degree 
approaching that which each nation now enjoys within 
its own borders. 

Lest what has been said may be thought to furnish 
some support for those who seek the immediate federa- 
tion of the world under a "parliament of man' ' enacting 
a "world-law," let it be said that there is nothing in 
the foregoing which is intended to give support to any 
such idea. The form which the organization of the 
society of nations will take, and the changes in the 
constitution-making, legislative, executive and judicial 
processes of the society which will occur, as the result 
of progressive improvement, it is impossible to foretell. 
It may well be that the ultimate form will be quite 
different from anything yet known, and one which 
would be unimaginable at the present time. 



THE PARTICIPATION OF THE ALIEN IN 

THE POLITICAL LIFE OF THE 

COMMUNITY 



459 



THE PARTICIPATION OF THE ALIEN IN 

THE POLITICAL LIFE OF THE 

COMMUNITY 

Address delivered at the Annual Meeting of the American Society of 

International Law, held at Washington, April 27-29, 191 1. 

Reprinted from the Proceedings of the Society for the year 191 1. 

IN discussing this subject, it is necessary, first of all, 
to distinguish between the political rights of the indi- 
vidual — whether he be a citizen or an alien — and his 
civil rights. By political rights we mean his rights to 
exercise the power of voting and of governing. By 
civil rights we mean his social and economic rights — 
his rights of life, liberty, and property. It is settled 
by the consensus of the civilized world that political 
rights are not universal, like the rights of life, liberty, 
and property, but that they are special rights, or privi- 
leges, to which some persons in every community are 
justly entitled and others are not. The rights of life, 
liberty and property correspond to the three attributes 
of life, motion and prehension, with which every human 
being is endowed by his Creator, and the exercise of 
which, under proper conditions and limitations, is 
essential to the existence of every human being. Accord- 
ingly they are universal, and civilized nations recog- 
nize a rule of supreme law securing these civil rights. 
On the other hand, the right to vote and to govern 
corresponds to the attribute of judgment, which is not 
common to all, and is possessed only by sane civilized 
adults, who have been educated in judgment. Each 

461 



462 The American Philosophy of Government 

nation, within reasonable limits, determines for itself 
who have the requisite judgment to be able, with ad- 
vantage to the community, to exercise the power of 
voting and governing. The decision of the Supreme 
Court of the United States, in 1874, i n the case of 
Minor v. Hap per sett (21 Wallace, 162), in which it was 
held that participation in the political life of a State 
of the Union was not a right of life, liberty or property, 
nor a necessary incident to citizenship of the United 
States, was but an application of the established cus- 
tomary law of the society of nations. 

Considering now the various ways in which the resi- 
dent alien may participate in the political life of the 
community, we take up first, his participation in its 
abnormal political life. Naturally, participation in 
proceedings designed to produced anarchy comes first. 
Here it makes no difference whether the alien is a resi- 
dent or a mere visitor in the country. The offence of 
preaching anarchy or acting in accordance with an- 
archistic principles, is an offence against all nations 
individually and against the society of nations. The 
interposition of the nation of which such a resident 
alien is a citizen, would be confined to seeing that the 
offence was fairly proved and that cruel or unusual 
punishment was not applied. Anarchists are inter- 
national outlaws and are to be treated as such. 

Participation by resident aliens in open revolutionary 
movements raises an entirely different set of questions. 
A revolutionary movement may be morally right and 
necessary as the only means of preventing oppression 
by a government which is persistently acting contrary 
to the ends of its institution and violating the rights 
of the individual to his life, liberty or property. The 
movement is not for the overthrow of all government, 
but for the deposition of certain persons claiming to be 



The Alien in the Community 463 

a particular government. If a revolutionary move- 
ment succeeds, the revolutionists form the government 
of the nation. Participation by resident aliens in revo- 
lutionary movements may, however, bring upon them 
the vengeance of the government, or be a cause for 
complaint, by the government, against the nation of 
which the aliens are residents, or may be invoked as 
justification for revoking concessions made to resident 
aliens; and if the resident aliens appeal to their nation, 
the nation has to determine its course according to the 
needs of the situation as viewed from its own stand- 
point and from the standpoint of the society of nations. 
Considering the danger to the peace of the world from 
revolutionary movements and the desirability of hav- 
ing political evils corrected by orderly and systematic 
methods, nations are very slow to give their protec- 
tion to their citizens who engage in revolutionary move- 
ments in foreign countries. They will, indeed, take 
into consideration the fact whether or not the alien acted 
under compulsion in participating in the revolutionary 
movement, and whether or not his participation was 
rather for the purpose of protecting life or property 
than for the purpose of rendering the revolutionary 
movement successful. In other words, they will con- 
sider his intent, as well as his acts. 

The general rule seems to be that if a resident alien 
participates in the revolutionary movements, he does 
so at his own risk, and if the nation of his citizenship 
interferes to protect him, it will be because, looking 
at the question both from the national standpoint and 
the standpoint of the society of nations, it is willing to 
countenance or excuse the revolutionary movement as 
the only reasonable means of combating intolerable 
oppression. The protection of the alien would in 
such case be an incident of national policy. The prin- 



464 The American Philosophy of Government 

ciple was thus expressed in a letter from the Secretary 
of State of this country to our minister to Corea, in 
1897. (Moore's Digest, Vol. IV, p. 15.) 

It behooves loyal citizens of the United States in any- 
foreign country whatsoever, to observe the same scrupu- 
lous abstention from participating in the domestic concerns 
thereof, which is internationally incumbent upon his Gov- 
ernment. They should strictly refrain from any expression 
of opinion or from giving advice concerning the internal 
management of the country, or from any inter- 
meddling in its political questions. If they do so, it is at 
their own risk and peril. Neither the representative of 
this Government in the country of their sojourn, nor the 
Government of the United States itself, can approve of any 
such action on their part, and should they disregard this 
advice, it may perhaps not be found practicable to ade- 
quately protect them from their own consequences. 

Participation by an alien in revolutionary action, 
therefore, is not a complete bar to his own nation ex- 
tending him its protection ; but if it does extend him its 
protection, it will be because of its views of national 
and international policy and of abstract right and 
wrong as bearing on the revolution in question. 

The next question which arises is as to the effect 
which voluntary participation by the alien in the nor- 
mal political life of the community, with its consent, 
has upon the right and duty of his own nation to pro- 
tect him. Such an action on his part is analogous to 
becoming a citizen of the nation of his residence, and 
if carried sufficiently far, the nation of which he is a 
citizen may, it would seem, properly refuse him pro- 
tection on the ground that his actions amount to a 
renunciation of his citizenship. It seems that the 
exercise of the franchise by the alien, or even his hold- 



The Alien in the Community 465 

ing office in the nation of his residence, or participa- 
ting in the military service of that nation, does not 
of itself operate to prevent his nation from extending 
to him its protection; but that, as bearing upon the 
question whether the alien has expatriated himself 
and forfeited his right to protection, such action on his 
part will be considered as important evidence tending 
to prove expatriation. (Moore's Digest, Vol. Ill, pp. 

730-735, 783, 785.) 

The right of expulsion as respects civilized aliens is 
now rarely exercised by civilized nations except as 
against aliens who have participated in the abnormal 
political life of the community ; but it may be exercised 
on this ground without giving cause for international 
complaint. The Alien and Sedition Acts adopted by 
the Congress of the United States in 1798 were entirely 
consistent with international law, being directed against 
alien political agitators who were trying to engage this 
nation in a foreign war and probably also in a civil war. 
Another class of questions which has arisen is, as to the 
extent of the protection which a nation gives its citizens 
who are residents in a foreign nation which has a mili- 
tary conscription system, against the claim of that 
nation to compel them to participate in its political 
life as soldiers or to pay a military exemption tax. The 
law on this subject is so uncertain, that the question is 
usually settled between particular nations by treaty. 
One point seems, however, to be settled, namely, that in 
case of emergency and necessity — as, for instance, where 
there is danger of invasion, or of attack by savages — 
the military or constabulary service of aliens, whether 
residents or sojourners, may be compelled. The strong 
tendency seems to be for nations to regard as an un- 
friendly act compulsion to perform military service 
exercised against their citizens by other nations in 
30 



466 The American Philosophy of Government 

which they reside, but to permit without remonstrance 
the taxation of such persons for military purposes, if 
the taxation is uniform with that imposed on other 
persons for the same purpose. (Moore's Digest, Vol. 
IV, p. 65.) 

A question arises as to the rights of resident aliens to 
participate in the political life of the community when 
a country inhabited by civilized persons is ceded by one 
nation to another. This matter is generally regulated 
by the treaty of cession. If the country ceded is con- 
tiguous to the nation to which it is ceded, so that it 
can properly be incorporated with its inhabitants into 
the body -politic of the nation, it is customary to pro- 
vide for such incorporation and for citizenship of the 
nhabitants on equal terms with the other citizens of 
the nation. If the country is non-contiguous, so that 
it is impossible to incorporate it in the body-politic 
of the grantee nation, treaty arrangements can, of 
course, go no farther than to recognize the ceded 
country as having a sufficient degree of statehood so that 
it may have its own citizenship, and to provide that 
the civilized inhabitants at the time of cession shall be 
citizens of the ceded country. Those general princi- 
ples have been recognized in the treaties of cession 
made to this nation. 

A question of the protection which a nation gives to 
its citizens residing abroad, in their political rights, led 
to the Boer War. The Transvaal Republic — or, as it 
was called, the South African Republic — controlled by 
persons of Dutch descent, asserted the right to impose 
such terms upon resident aliens with regard to acquir- 
ing citizenship as it might see fit, and in fact im- 
posed such terms that the acquisition of citizenship 
was made exceedingly difficult, at the same time taxing 
the resident aliens and placing discriminating burdens 



The Alien in the Community 467 

on them. The resident aliens were equal or superior in 
civilization to the native citizens. They were a mixed 
body of persons who had been attracted by the diamond- 
field near Johannesburg which began to be ex- 
ploited in the year 1886. The alien population, called 
Uitlanders by the Dutch, collected in towns and cities 
on the diamond-field — the Rand, the Dutch popula- 
tion being scattered throughout the country. The 
foreign residents increased until they nearly equalled 
the Dutch citizens. The South African Republic was 
under the suzerainty of Great Britain, and by the con- 
vention determining the specifications of the suzerainty, 
all foreigners "conforming to the laws" of the state 
were entitled to enter and reside there and were pro- 
tected in their civil rights and against discriminating 
taxation. Nothing was said in the convention respecting 
their participation in the political life of the state, and 
as regards their political rights they were subject to the 
rules of international law. The question was treated 
as one of international law; the suzerainty being re- 
garded as limiting the right of other nations to inter- 
vene but not otherwise affecting the case. Great 
Britain, in behalf of all Uitlanders, insisted that it was 
the duty of the South African Republic to provide a 
method of naturalization of foreigners on reasonable 
terms — the reasonableness of the terms to be deter- 
mined by the custom of civilized nations as to admit- 
ting resident aliens to citizenship. The South African 
Republic insisted on terms making the acquisition of 
citizenship much more difficult than is customary. 
Lord Milner, as High Commissioner, in his famous 
dispatch to the Secretary of State for the Colonies, of 
May 4, 1899, based the case of Great Britain upon its 
right of international intervention to protect its citizens, 
partly on the ground that the action of the South 



468 The American Philosophy of Government 

African Republic affected the honor and vital interests 
of Great Britain, and partly on the ground that it was 
for the interests of civilization that the right claimed 
by the South African Republic, to keep civilized resi- 
dent aliens in a status of political inferiority as long as 
it might see fit, when they desired to become citizens, 
should not be yielded to by the civilized nations. In 
that dispatch he said : 

[The Uitlanders] have many grievances, but they believe 
all these could be gradually removed, if they had a fair share 
of the political power. This is the meaning of their vehe- 
ment demand for enfranchisement. Moreover, they are 
mostly British subjects, accustomed to a free system and 
equal rights ; they feel deeply the personal indignity involved 
in a position of permanent subjection to a ruling caste, 
which owes its wealth and power to their exertion. The 
political turmoil in the Transvaal Republic will never end 
till the permanent Uitlander population is admitted to a 
share in the Government, and while that turmoil lasts, 
there will be no tranquillity or adequate progress in Her 
Majesty's South African dominions. . . . 

It is this which makes the internal condition of the Trans- 
vaal Republic a matter of vital interest to her Majesty's 
Government. No merely local question affects so deeply 
the welfare and peace of her own South African possessions. 
And the right of Great Britain to intervene to secure fair 
treatment of the Uitlanders is fully equal to her supreme 
interest in securing it. The majority of them are her sub- 
jects, whom she is bound to protect. But the enormous 
number of British subjects, the endless series of their griev- 
ances, and the nature of these grievances, which are not 
less serious because they are not individually sensational, 
makes protection by the ordinary diplomatic means im- 
possible. . . . 

The true remedy is to strike at the root of all these in- 
juries — the political impotence of the injured. What diplo- 



The Alien in the Community 469 

ma tic protest will never accomplish, a fair measure of 
Uitlander representation would gradually, but surely, 
bring about. It seems a paradox, but it is true, that the 
only elective way of protecting our subjects is to help them 
to cease to be our subjects. . . . 

It could be made perfectly clear that our action was not 
directed against the existence of the Republic. We should 
only be demanding the establishment of rights which now 
exist in the Orange Free State, and which existed in the 
Transvaal itself at the time of, and long after, the with- 
drawal of British sovereignty. It would be no selfish de- 
mand, as other Uitlanders besides those of British birth 
would benefit by it. It is asking nothing from others which 
we do not give ourselves. And it would certainly go to the 
root of the political unrest in South Africa, and though 
temporarily it might aggravate, it would ultimately ex- 
tinguish the race feud, which is the great bane of the country. 

Lord Milner's position was adopted by the British 
Government. 

Professor Westlake, in his lecture on "The Trans- 
vaal War," delivered in the University of Cambridge 
on November 9, 1899, more fully interpreted the gov- 
ernment's position and justified the intervention of 
Great Britain in the internal affairs of the South 
African Republic to secure for the resident aliens a 
participation in its political life, as one of those extra- 
ordinary rights which grow out of an intolerable situa- 
tion — the kind of rights referred to in our arbitration 
treaties as rights to protect the national honor and vital 
interests. He said : 

[This] is a war between two ideals, of which only one is a 
racial ideal. On one side we have the English ideal of a 
fair field for every race and every language, accompanied 
by a humane treatment of the native races. . . . The 
other ideal. ... is founded ... on the desire to maintain 



470 The American Philosophy of Government 

the Dutch language, the Dutch social and political system, 
and its mode of treatment of the natives. We must not at 
once condemn an ideal because it is a racial one. The 
larger part of the world is governed by racial ideals. . . . 
We are in a minority in having an ideal which is not a racial 
one, and we must look with respect, if not with approval, 
upon ideals which present themselves to the larger part of 
civilized mankind. . . . 

Ideals are always propagandist, and there is another cir- 
cumstance about them, that they admit of no compromise. 
There may be a compromise between different measures 
proposed to be carried out, but between two ideals there is 
none. The franchise and representation asked for by the 
Uitlanders by Sir Alfred Milner could not be otherwise than 
a death blow to the Boer ideal. Now we may think, and I 
have no doubt that most of us do think, that the English 
ideal is the better of the two, but that will not give us a 
right to enter upon a crusade for its propagation. If we 
allow propagandism to be a cause for war the result will 
be anarchy throughout the world. And who are we that 
we should take upon ourselves to say that our own ideals 
are not only the best, but so much the best as to make it 
worth while to propagate them in spite of the horrors 
caused by the sword ? I must say that sometimes I have 
a feeling, which perhaps not many of you share, when 
I see the extent to which the English language and institu- 
tions are spreading over the world, that even if that spread- 
ing is brought about solely by pacific and fair means, there 
is a possibility that that danger may be incurred which 
the poet has expressed when he wrote "Lest one good 
custom should corrupt the world." I am therefore by no 
means inclined to hurry the extension even of our own ideal. 
We must then all of us ask what is the justification for 
that demand which Sir Alfred Milner made at the Bloem- 
fontein Conference and which has since been maintained, 
that the English ideal should be adopted in the Transvaal 
Republic or war should follow, as it has followed. . . . 
I think that the demand on our part was not founded on 



The Alien in the Community 471 

any legal right, but that it may have been justified, proba- 
bly was justified, by one of those situations that occur in the 
mutual relations of nations, soluble by no canons of legal 
right, but for which a higher justice must be appealed to — 
that larger justice which in this country is exercised not by 
courts applying the law as it is, but by Parliament altering 
the law — and which is sometimes necessary between nations, 
bringing into operation demands not founded upon a legal 
position but upon the intolerable character which a certain 
situation has assumed. 

Without entering into a discussion of the much- 
mooted question whether there were not other and less 
worthy issues involved in the Boer War, it seems fair 
to say, as Lord Milner did, that in a case where a nation 
denies all participation in its political life to citizens 
of civilized nations of whose training and capacity for 
voting and governing there can be no doubt, that nation 
by its act injuriously affects these nations and the so- 
ciety of nations; for such action, if persisted in and if 
followed by other nations, would destroy the society 
of nations and civilized society in general. 

Had the persons desiring such participation been 
citizens of uncivilized states, or citizens of civilized 
states not having the requisite training or capacity, 
the case would have been entirely different. In such 
case there would have been no question of the honor 
and vital interests of the society of nations being in- 
juriously affected, since it is for the advantage of the 
society of nations and of civilization in general that 
the civilized nations should deal cautiously with the 
uncivilized nations, and should not permit untrained 
or incapable persons to participate in their political life 
as voters or governors. 

The question of the participation of resident aliens 
in the political life of the community is thus seen to 



472 The American Philosophy of Government 

involve the most fundamental principles in interna- 
tional life. To deny them all such participation is to 
destroy the society of nations by fostering national 
and racial unsociability ; to allow unlimited participa- 
tion is also to destroy the society of nations by allowing 
lower standards of civilization to pull down higher 
standards and thus to produce social chaos. Those 
capable of exercising the franchise and the govern- 
mental power should, in the interests of the society of 
nations, have participation in the governments of their 
choice; those incapable should be gradually rendered 
more capable until their limit of capacity is reached, 
and participation in political life should follow promptly 
upon attainment of the capacity for such participation. 
On the other hand, racial and national ideas are to be 
respected and even fostered, so far as they are not in- 
consistent with the preservation of the society of na- 
tions. No more delicate or important task rests upon 
a government than that of deciding upon the nature 
and degree of the protection which it shall give to its 
citizens resident in other nations who participate in 
the normal or abnormal political life of the community, 
or who are compelled against their will to so partici- 
pate, or, who, being qualified by capacity and training 
to vote and govern, desire to become citizens of the 
nation of their residence and are denied this privilege. 



LIST OF REFERENCES 

Bentham, Jeremy. Principles of Morals and Education, 424 

Blackstone. Vol. iv., 121 

Bonfils' Manual de Droit International Public, 19, 21 

Bryant's History of the United States, vol. iv., 150, 151 

Cleveland, G. The Government and the Chicago Strike, 151 

Congressional Record, Senate Proceedings for 18Q4, 151 

Cooley, T. M. Reports of the American Bar Association, 1894, 151 . 

Foster, Roger. Treatise on Federal Practice, 122 

Freeman. On Executions, vol. i., 121 

Grotius. Three Books of Peace and War, 70 

Holland, Prof. Jurisprudence, 398-399 

MacM asters, J. B., and Stone, F. D. Pennsylvania and the Federal 

Convention, 141 
Madison, Life and Letters of, vol. ii., 142 
Moore's Digest, 464, 465, 466 
Phillips, P. Statutory Jurisdiction and Practice of the Supreme Court, 

122 
Rawle, William. View of the Constitution of the United States, 304, 

309, 316 
Scott, James Brown. Hague Convention and Declaration of 1899 and 

1907, 139-140 
Snow, Alpheus H. Administration of Dependencies, 139 

Proceedings of the American Political Science Association of 191 3, 15 
Sohm, Rudolph. Institutes of the Roman Law, 128 
Taylor, Hannis. Jurisdiction and Procedure of the Supreme Court of 

the United States, 122 
Westlake, Prof. International Law, 401-402, 427 
White, Chief Justice. Insular Cases, 303 



473 



INDEX OF JUDICIAL CASES 

Calvin's Case, 79, 81, 117 

Campbell v. Hall, 96, 117 

Chisholm v. State of Georgia, 120, 134, 141 

City of London v. Wood (Chief Justice Holt), 196 

Coke, Lord, on Bonham Case, 195 

Day v. Savadge (Hobart), 195-196 

Dorr v. United States, 16 

Downes v. Bidwell, 11, 303-304 

Dred Scott Case, 115, 116 

Empire v. Union, 29 

Ex parte Merryman, case of, decided by Chief Justice Taney, 143 

Ex parte Siebold, 132 

Geofroy v. Riggs, 39 

Gordon v. United States, 132 

Hawaii v. Mankichi, 16 

Kepner v. United States, 15, 16 

Logan v. United States, 11, 15 

Louisiana, State of, v. Jumel, 145 

Louisiana, State of, v. Texas, State of, 134, 148 

Minor v. Happersett, 462 

Nathan v. Commonwealth of Virginia, 135 

New Hampshire v. Massachusetts, 98 

Penn v . Lord Baltimore, 97 

Postnati, case of, 79, 81 

Rees v. City of Watertown, 134 

South Dakota z>. North Carolina, 134, 136 

United States Bank v. Halstead, 120, 131 

Virginia, State of, v. West Virginia, State of, 115, 116, 117, 134, 144, 

152, 153 
Wayman v. Southard, 130 



475 



INDEX OF SUBJECTS 



Act, Judiciary, of Constitution, 
1789, 130, 132 

Act, Process, 1789, 130, 132 

Adams, John, account of drafting 
the first resolutions of the 
Continental Congress, 196 
on the opening of the Continen- 
tal Congress, 47 

Administration of Dependencies, 
A. H. Snow, 139 

Aliens, abroad, 446-468 

civilized, right of expulsion of, 

462-466 
political rights of, 461-462 
resident, right to participate in 

political life, 466 
resident, participation in open 
revolutionary movement, 462- 
464 
right of protection which a na- 
tion gives to its citizens, 38 

Amendments of the Constitution, 
thirteenth, fourteenth, and 
fifteenth, cause of, 115 

America and India, opening the 
sea-route to, 84 

America, power over insular 
regions, 38 

American colonies, basis of eco- 
mic ideas, 72-73 
basis of social ideas, 72 

American ideas, as to how a union 
of states may be effected, 
162-163 

American Institute of Interna- 
tional Law, declaration of, 
225 

American Peace Society, declara- 
tion of, 225 

American Philosophy of Govern- 
ment and its effect on Inter- 
national Law, 5-33 

American Philosophy of Govern- 
ment, in the way of a codifi- 
cation of International Law, 
32-333 



American policy, on judical 
unions, 260-263 

American republics, union of, by 
Congress, 168-169 

American Revolution, philosophy 
of, 42-44 

American statesmen, views of, on 
the connection between Great 
Britain and the Colonies, 
from 1 764-1 776, 61-65 

Arbitration Court, Permanent In- 
ternational, at first Hague 
Conference, 139-141 

Arbitral process in dispute, defi- 
nition of, 389-390 

Arbitration, definition of, as used 
in political literature, 383 

Arbitration treaty, between the 
United States and Great 
Britain, 238 

Army Appropriation Act, 312 

Articles of Confederation, on es- 
tablishment of tribunals for 
the pacific settlement of dis- 
putes between states, 140 
given the sanction of mutual 
agreement of states, and the 
powers granted by, 106 
the last resort of appeal, 67 

Artificial or remedial rights, 1 1 



B 



Bacon, Francis, on dispute be- 
tween England and Scotland, 

79 

Balance of power, 6-7 

Belgium, protest against the dis- 
tribution of the German 
Colonies as arranged by the 
Covenant of the League of 
Nations, 368 

Bentham, Jeremy, invention of 
expression ' ' international 
law," 424 

Berlin African Conference, neu- 
tralization of Congo Basin, 
363-364 



477 



478 



Index 



Bill of Rights, 17 
constitutional, 237 

Blackstone, on contempt against 
the King's Prerogative, 121 

Body of Liberties, 27 

Boer War, cause of, 466-469 

Bonfils' Manual de Droit Inter- 
national Public — rights of 
man; rights of individuals as 
citizens of a national, against 
another nation, 19-21 

Bradley, Justice, on power of the 
United States -courts to issue 
all writs which may be ne- 
cessary to their respective 
jurisdiction, 132 

Brewer, Justice, on South Dakota 
v. North Carolina, 134, 136 

British policy on the "open door" 
in China, 349"35° 

Burke, Speech on American Taxa- 
tion, 102 
Speech on Conciliation, 105 



Calvin, John, "Institutes of the 
Christian Religion" on Moral 
Law, 159 
philosophy of, 43 

Calvin's case, 79, 81, 117 

Case of the Postnati, 79, 81 

Cassini Convention, Russia's 
lease of Kiaochoa Bay, 348 

Central America, philosophy of 
government of the republics 
of, 30 

Charles L, abolishment of the 
Virginia Company, 85-86 

Charles II., final section of the in- 
struction of, to the Council of 
Foreign Plantations, 139 
recognition of the American 
Colonies, 93-94 

Charter of 1606 (James I.), claims 
in North America, 81-83 

Charter of 1609 (James I.), effect 
on Virginia, 84-85 

Charter to Company of Massa- 
chusetts Bay, 85-90 

Charter to Providence Plantation, 
90-91 

Chief Executive in a Justiciar 
State, powers of, 59 

Choate, Rufus, on equal rights, 41 

Christian Society of the Early 
Church, law of, 422 



Cleveland, President, executive 
powers over the United 
States mails and interstate 
commerce, 151 

Coke, Lord, on Bonham's Case, 

195 

Colonial Charters, 40 

"Colonial Pact" theory, 91 

Colonies converted into Royal 
Provinces, 94 

Commission of Judicative Con- 
ciliation, difference between, 
and Court, 384-385 

Conciliation, definition of, as 
used in political literature, 
382 

Confederation or League of Na- 
tions, plan for, 286-287 

Congress, action of, on extension 

of Constitution, 39 

right of, to determine whether 

the United States shall enter 

the League of Nations, 308- 

309 

Connecticut, charter of, on rights 

of citizens to elect their own 

officers, 1 80-1 81 
Constitutional Bill of Rights, 237 
Constitutional prohibitions, 16- 

18, 25-28 
Constitution of the United States, 

theory of Supremacy of, 108 
adoption of, 234-235 
on claims, individual, against a 

foreign government, 21-25 
on care of President to see that 

the laws are executed, 147 
defects of, 164-165 
fourteenth amendment of, 

adopted, 198 
judicial powers of, 107 
on jurisdiction to render a direct 

judgement against a member- 
state of the Union, 118 
on the powers of the President, 

121-122 
protection of fundamental 

rights, 14-17 
Constitution, American, as logical 

application of fundamental 

law, 161 
Continental Congress, Adams' 

account of, 196 
as agent of colonies, 180 
decision as to whether American 

Colonies should remain a part 

of the British Empire, 103 



Index 



479 



Convention for Pacific Settlement 
of International Disputes, 
Hague, 209-211, 223, 238- 
240, 236-266 

Cooperation versus Compulsion 
in the Organization of the 
Society of Nations, 269-281 

Cooperative union, as applied to 
a minor groupe, 293 
of nations, 295-298 

Corporations, principles of law of, 
181-182 
theory of State of, 183-193 
four subjects dealt with in the 
theory of State, 193-194 

Council for National Defence, 

312-315 

"Council for New England, 85 
surrender of Charter and Let- 
ters Patent, 8'6 

Council of Three, 368, 379-381 

Council of Trade, 91 

Council of Virginia, provided by 
Charter of 1606, 82-83 

Court of Arbitral Justice, estab- 
lishment of, 69-70, 75 

Courts, protection of, 27 

Covenant of the League of Na- 
tions, German Colonies, 366 
provisional organization for, 
366-367 

Covenant of the League of Na- 
tions, Constitution of, 321— 

324 
effect of , 3 1 1 
form of, 157 

obligations under, 165-168, 305 
provision of, 165-166 
rules of, 329-332 
safe-guard,s of, 324-329 
situations which arise from 

proposals of, 301-302 
as a super-constitution of a 

super-unity, 305 



Declaration of Independence, 
based on the doctrines of the 
Reformation, 47 
denies claim of Great Britain to 
exercise absolute power over 
the American Colonies, 103 
free Statehood of, 50-53, 56-57 
on fundamental rights, 10-11 
how governments are instituted, 
162 



on inalienable rights, 48-50 
preamble of, 40-41, 48 
spirit of the Constitution, 39-41 
term ' ' connection ' ' as used in, 5 1 
on doctrine of extension of the 
British Constitution to the 
American Colonies, 40 
Declaration of Independence, as 
the Fundamental Constitu- 
tion of the United States, 
37-66, 233-234 
Declaratory Act and the Tea Act, 

101 
Department of Foreign Affairs or 

Department of State, 31 
Development of the American 
Doctrine of Jurisdiction of 
Courts over States, 62-112 
Dred Scott Case, 115, 116, 117 



Ellsworth, Oliver, on organizing 
the judiciary of the United 
States, 122 

Empire v. Union, 39 

English, Habeas Corpus Act, 27 
Petition of Rights, 27 

Executions, Freeman on, 121 

Execution, of Judgements against 
States, 1 15-154 

a. judgements against States, 
115-119 

b. nature of the power of execu- 
tion, 119-128 

c. source of power, 127-132 

d. extent of power, 132-145 

e. manner of exercising power, 
145-154 



Fabian Society of London, plan 

of, 269-270 
Field, Justice, on case of Geofroy 

v. Riggs 
Fourteen Points, the fifth, 364 
Fox, philosophy of, 43 
France, constitutional law of, on 

arbitration, 258 
obtains terminal port in China, 

351 

Free trade established among the 
Confederates in Massachu- 
setts, 90 

French Revolution, philosophy of, 
42 



480 



Index 



Fuller, Chief Justice, on State of 

Louisiana v. Texas, 148 
Fundamental law, 12, 23-25 
Fundamental rights, 12 
as created, 23 
as recognized and safe-guarded 

by nations, 13-19 
doctrines of, 26 



General Assemblies or Courts, 

88-89 
Germany, Colonies of, at the end 
of the Great War, 359-361 
Council of Three, action Ger- 
man Colonies, 368-371 
resistance of, against the Allies, 

362 
Great Britain and France 

arrange for, 361 
Great Britain and Japan 

arrange for, 361-362 
Japan acquires, 372 
United States acquires, 372 
Germany's privilege in China 

under the Treaty, 353-356 
Government, American system of, 

236-237 
as a corporation, 18 
European system of, legally 

unlimited, 236 
limitations of power of, 28 
Government, popular tendency of, 
8 
right of self-government, 56 
Gray, Justice, on Downes v. 

Bidwell Case, 303-304 
Great Britain, claims in China at 
the close of the Opium War, 

347 
compensations in China, 351- 

352 
law, basis of, 439 

Great Britain and Russian dis- 
pute, during the Russo- 
Japanese War, 375-377 

Grotius, Three Books of Peace and 
War, on power which a state 
ought to exercise over its 
colonies, 70-72 

H 

Habeas Corpus, writ of, 122 
Hague Conference, first, Perma- 
nent International Arbitra- 
tion Court, 139-140 



proposed new court of, 455- 

457 

Hague Convention and Declara- 
tion of 1899 and 1907 (James 
Brown Scott), 139-140 

Hague Convention, on Pacific 
Settlement of International 
Disputes; on Great Britain 
and Russian dispute during 
the Russo-Japanese War, 

375-377 
on Commissions of Inquiry, 

380-381 
on Judicative Conciliation, 381- 

382 
organizations of, nations for, 

279-281 
recommendations of, 209-211, 
223, 238-240, 263-266 

Hardwick's motion in Case of Penn 
v. Lord Baltimore, 97-98 

"Hay Proposals" on British 
policy in China, 350 

High Court of the Inquisition 
(Spain), 166 

High Court of the Star Chamber 
(England), 169 

Hoadly, Bishop Benjamin, Essays 
on the Origin and Institutions 
of Civil Government, 159 

Hobart, on Day v. Savadge, 195- 
196 

Holland, on codification of 
International Law, 398-401 

Holmes, Justice, on Case of Vir- 
ginia v. State of West 
Vriginia, 152-153 

Holt, Chief Justice, on City of 
London v. Wood, 196 

Hooker, Richard, Concerning 
Laws and their Several 
Kinds in General, 159 

Holy Alliance, threatened to ex- 
tend the European system 
over South America, 235 

Holy Roman Empire, Imperial 
Chamber of, 138-139 
laws of, 422 

House of Burgesses, 84 

Hull, W. L., suggestion for defi- 
nition of International Law, 
425-426 

I 

Imperial Federation League, 214 
India and America, opening of the 
sea- route to, 41 



Index 



481 



Ingalls, John James, on equality 

of man, 41 
International Arbitration and 

Disputes, 31 
International arrangements of 

1898, on China, 353 
International Bureau of the Uni- 
versal Post Union, 223 
International Court, question of 
a true International Court, 
109-112 
of Arbitration, Permanent, 221- 

223 
and of Arbitral Justice, 221-223 
International conciliative body, 
216-218, 228-230 
political body of, 218-219 
ordinary directorate of, 219- 
221, 225-228, 290-293 
International government by 
physical force, question of, 
211-216 
International Law and Political 

Science, 439~457 
International Law, among na- 
tions, passing away of , 453-457 
changes recognized in Europe, 

19-20 
codification of (Prof. Holland), 

398-401; (Westlake, 401) 
definition of, 424-426 
old theory of, 19 
regarded as the Society of 

Nations, 406-409 
requirements of codification, 
402-404 
International Legislative and 

Administration, 209-230 
Iredell, Justice, on Chisholm v. 
State of Georgia, 134 



Jackson, President, exercising ex- 
ecutive powers against South 
Carolina, 1 50-1 51 
proclamation of 1832, 146 

James I., Charter 1606, claims in 
North America, 81-84 
relations between Great Britain 
and American colonies, 117 

James II., charter converting 
colonies into Royal Provinces, 

94 
James VI., power of, 77-85 
Japan, acquires German colonies, 

372 



ejected from Manchuria, 347 
indemnity to England and 
Germany, 352 

Jay, Chief Justice, on Case of 
Chisholm v. State of Georgia, 
120, 124, 141 

Jefferson, Thomas, on intervening 
years between assembling of 
Congress and the promulga- 
tion of the Declaration of 
Independence, 47 

Judicative conciliation, 375-394, 
388-389 

Judicial process, action of, defined, 

.3.89 
Judiciary acts, 130, 132 
Judgement against States, 1 1 5-1 19 
"Justiciar State, ' ' chief executive 
in, and powers of, 59 
legislative assembly in, 59 
right of self-government, 57-59, 



61 



K 



"King in Council," definition of, 
7.6 . 
jurisdiction of, 76 
powers of, under James L, 80 
as regulated by Parliament, 88 
Supreme Court of Appeals, of 
the Empire, 96-97, 106-107 
King's councils, admission of 

merchants to, 83-84 
Knox, Secretary, on the Pending 
Arbitration Treaties, 224- 
226 
binding of the interpretation, 
247-248 



Lamsdorff, Count, proposals at 
the Hague Convention, 378 
on the recommendations at the 
Hague Convention, 380 
Laud, Archbishop, arbitrariness 

of, 87 
Law, fundamental, 12-25 
Law of nations, 421-435 
League of Nations, according to 
the American idea, 1 57-151, 
158, 169-171 
Belgium Protest, 368 
consideration of, 271-279 
constitution of, 321-324 
covenant of, 157, 305 



482 



Index 



League of Nations — Continued 
effect of, 3 1 0-3 1 1 
safe-guards of, 324-329 

League of Nations, Covenant of, 
disposition of the German 
Colonies, 367 
novelty of "Mandatory Sys- 
tem," 332-333 
provisional organization of, 

366-367 
rules of ineligibility, 329-332 

League to Enforce Peace, plan of 
Constitution, 270-271 

Lee, Richard Henry, Bill to regu- 
late Processes in the Courts 
of the United States, 123 

Legal _ Limitations of Arbitral 
tribunals, 232-266 

Legislative assembly in a Justiciar 
State, powers of, 59 

Legislative law, external and su- 
preme, 9-1 1 

Lincoln, Abraham, on equality of 
men, 41 

Luther, philosophy of, 140 



M 



MacDonald, Sir Charles, letters 
to Lord Salisbury, on con- 
troversy between China and 
Germany, 340-341 

Madison, President, letters to 
Governor Snyder, on Penn- 
sylvania statute conforming 
to judgement of United States 
Court, 142 

Magna Charta, 2j, 179 

Manchuria, Japan ejected from, 

347 

Mandatory System under the 
Covenant of the League of 
Nations, 321-336 

Manual de Droit International 
Public (Bonfils), 19-21 

Marshall, Chief Justice, on powers 
of United States Courts to 
issue all compulsory processes 
necessary for the exercise of 
their respective jurisdiction, 
130-131 

Massachusetts Bay, "Body of 
Statutes," 89 
colonies of, 89 
commonwealth of, 89 
principles that govern the 
charter, 179 



Massachusetts Bay Company, 
Charter of, 85-90 
general courts of, 88 
surrender of charter, 87 
Massachusetts Body of Liberties, 

180 
Mayflower Compact, 183 
Mediation, definition of, as used 
in political literature, 383- 

384 
Mercantile system in England, 99 
Milner, Lord, on right of inter- 
national intervention of Great 
Britain to protect its citizens 
in Africa, 467-468 
Monroe Doctrine, basis of, 29-32 
Monroe, President, message to 
Congress on the European 
System, 235 
Moore's Digest, on participation 
in open revolutionary move- 
ment by aliens, 464-466 



N 



National honour, 6-7 

Nature of power of execution, in 
judgement against States, 
1 19-126 

Navigation Act, passed, 91-93 

New England, United States 
colonies of, Articles of the 
Confederation on, 89-90 

New Hampshire against Massa- 
chusetts, disputed boundaries 
of, 98-99 

New National Processes and 
Organs, 301-317 

North Sea Incident, 379 



O 



"Open Door" policy in China, 
349-352 

Opium War, Great Britain s 
claims, 347 

Organization, Cooperative, defini- 
tion of, according to political 
literature, 386-388 

Organized communities as cor- 
porations, 18 

Oriental trade, closing of the 
Mediterranean to, by the 
Mohammedans, and the re- 
sults of, 84 

Otis, James, 196 



Index 



483 



le Pacte Colonial (in France), 99 
Pan-American Union, 168-169, 

Participation by the aliens in the 
political life of the commun- 
ity, 461-472 
organization of, 365 

Peace Conference, delegates to, 
365-366 

Peace Treaty, disposition of 
German colonies, 369-370 
on the Shantung question, 339 
signed by the Germans, 368 

Permanent International Court 
of Arbitration and Permanent 
Court of Arbitral Justice, 
221-223 

Petition of Rights, 194-195 

Philippines, Commission for tak- 
ing over the civil government 

Philosophy of Government, differ- 
ence between that of the 
United States and that of 
other governments, 27 
that of continental Europe, 

. ^9 

Philosophy of Popular Govern- 
ment, tendency of, 8 

Political equilibrium or status 
quo, 6 

Political Science, development of, 
440-442 
new philosophy of, 443-445 

Position of the Judiciary in the 
United States, 175-209 
fundamental proposition upon 
our system rests, 177 

Postnati, case of, 79, 81 

President, reason why power to 
make treaties was conferred 
on, and on the Senate, 309- 
310 

Process Act, 130, 132 

Property, rights of, as a funda- 
mental, 13 

Proposed codification of Interna- 
tional Law and the relation 
of codification to the Pro- 
posed establishment of a 
Supreme International Court 
of Arbitral Justice, 397- 
418 

Providence Plantation, charter of, 
90 



Queen in council, 76-77 

Question by what process shall 
the United States enter into 
a treaty of union having the 
effect to supersede in part 
the Constitution of the United 
States, 306-308, 312-314 

Question of compulsory execution 
of the judgements of a court 
of a federal or federalistic 
union against a member- 
state of the Union, 116-118 

Question of the desirability of a 
state accepting a mandate 
of the League under the 
Covenant in its present form, 
333-336 

Question of the study of interna- 
tional political science to 
promote judicative concilia- 
tion, 391-393 

Question of terminology, 37 

decision of the Supreme Court 
on, 38 

Question of a true International 
Court, 1 09-1 12 

Question of whether a physical- 
force International Govern- 
ment is politically practi- 
cable, 21 1-2 1 6 



Randolph, Edmund, on Case of 
Chisholm v. State of Georgia, 
120 

Rawle, William, on the reason 
why treaty-making power 
was conferred on the Presi- 
dent and the Senate, 304, 
309-310 

Reformation, argument of the 
publicists on, 423-424 
evolving law of nations, 423 
philosophy of, 44-46 

Rhode Island Charter, on right 
of citizens to elect their own 
officers, 180 

Richelieu , ' ' Colonial Pact ' ' 
theory, 91 

Right of intervention of American 
republics, 29 

Right of property, 13, 160 

Rights, artificial, or remedial, 
definition of, 1 1 



4 8 4 



Index 



Rights — Continued 

Bill of, 17, 27 

doctrine of, 26 

constitutional prohibition of, 
16-18 

fundamental, 10- 11 

individual, as a citizen of a na- 
tion, against another nation, 
19-21 

infringement of, by govern- 
ment, 14 

political, of individuals, 461-462 

of aliens, 462-463 . 

popular, 8-10 

protection of, by the United 
States Constitution, 14-17 

Universal, as defined in the 
Declaration of Independence, 
40-41 
Roman Empire, civil law of, 421 
Russia, lease of Kiaochow Bay 
(Cassini Convention), 348 

political rights of, at terminal 
of Manchurian Railroad, 348 

relinquishes Railroad of Man- 
churia, rights, 350 



Scire facias, writ of, 122-123 

Scott, J. B., Hague Convention and 
Declaration of 18QQ-IQ07, 139 

Senate, powers of, 246 

Shantung question and spheres of 
influence, 339-356 

Snow, A. H., Administration of 
Dependencies, 139 

Society for Judicial Settlement of 
International Disputes, de- 
mands of, 393 

Society of Nations, objections to, 
427-430 
publicists of, 432 

Society of Nations, classification 
of the principles of Inter- 
national Law regarded as 
the Federal customary law 
of the Society of Nations, 
409-416 
laws of, 446-452 
peaceful revolution and as a 

renaissance, 442-416 
according to the methods of 
Political Science, 445-446 

Source of power of Courts of the 
United States, 127-132 

South America, philosophy of 



government of the republics, 
30 
Stamp Act, 100 

States as corporations, theory of, 
183-193 

four subjects dealt with, 193- 
194 

remedy for, 203-206 
Status quo or political equilibrium, 

6 
Stone, Mr., of Maryland, speech 
on the amendment of the bill 
for compulsory processes of 
the United States Courts, 
123-124 
Supreme Court of the United 
States, adoption of rule on 
style of writs, 124-125 

compulsory writ of execution 
of judgement, 124-125, 126 

decision of terminology, 38 

execution of the direct judge- 
ment, 118-119, 121 

executive powers of the United 
States, 123-126 

extent of powers of, 132-145 

extent of powers against states, 
132-146 

international powers, 109-112 

jurisdiction of fundamental 
rights, 22, 38 

manner of power, 145-154 

nature of power, 1 19-126 

origin of, 75 

on jurisdiction to render a 
direct judgement against a 
member- state of the Union, 
118 

powers granted by Congress, 
106-107 

prohibition of constitutional 
rights, 16-18 

relations between the United 
States and the insular coun- 
tries, 117 

source of power, 127-132 
Supreme Law, four kinds of, 4, 
24-27 



Taft, President, on reduction of 
army and navy, 256-257 

Taney, Chief Justice, on execution 
of judicial process by the 
United States Courts, 143 

Tea Act, 101 



Index 



485 



Terminology, question of, 37 
Territory clause of Supreme 

Court, 39 
Thompson, Justice, on case of 

United States v. Halstead, 

120-131 
Trade, Council of, 91 
Treaty, arbitration, between the 

United States and Great 

Britain, 238 
between China and Germany, 

preamble of, 339-340 
facts concerning the cause of, 

340-341 
signed, 349 
terms of, 341 
Treaty between Great Britain 
and France, for the purpose 
of extending the practice of 
arbitration, 240-243 
Knox's interpretation of the 

treaty, 247-248 
why objectionable, 248-256 
Treaty-making power, as a power 
incident to sovereignty, 304 
Rawle on, 304 
Treaty, Peace, on Shantung 
Question, 339 
signed by the Germans, 368 
Treaty of Westphalia, conception 
of organized society, 422 



U 



Unalienable rights, 10-11 
United Colonies of New England, 

89-90 
United States, acquires German 
colonies, 372 
colonies of, 40 

difference between, and other 
nations, in fundamental 



rights and in fundamental 

laws, 27 
as disturbing factor in Council 

of Nations, 33 
philosophy makes peace, 33 
wars of, for peace, 33 
United States Courts, laws, basis 

of, 439 
source of power, 127-132 



V 



Virginia Company, establishment 
of, and abolishment of, by 
Charles I., 85-86 

Virginia v. West Virginia, contract 
between, 11 5-1 16 



W 



War between Great Britain and 

France, 1753, 100 
Washington, President, on com- 
pelling the Act of Congress in 
1794, 148-150 
Farewell Address, application 
of, 259 
Westlake, Prof., on Codification 
of International Law, 401- 
402 
White, Chief Justice, on Downes 
v. Bidwell case, 303 
on power of Congress to make 
treaties, 306 
Wilson, James, on ratification of 
Constitution of the United 
States, 141 
on Transvaal War, 469-471 
Writ of execution of judgement, 
126 
Habeas Corpus, 122-123 
Scire Facias, 122-123 



